COURT OF APPEALS

SECOND DISTRICT OF TEXAS

FORT WORTH

NO. 02-12-00091-CR

JAMES DANIEL HARRIS APPELLANT

V.

THE STATE OF TEXAS STATE

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FROM THE 89TH DISTRICT COURT OF WICHITA COUNTY

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MEMORANDUM OPINION1 AND ORDER OF ABATEMENT

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A jury found Appellant James Daniel Harris guilty of possession of less 

than 200 but more than 4 grams of methamphetamine. Thereafter, Appellant 

pleaded true to an enhancement allegation, and the jury assessed his 

punishment at life confinement. Appellant filed a notice of appeal and a motion 

for new trial, arguing that he received ineffective assistance of counsel and that 

 1

See Tex. R. App. P. 47.4.
2

his statement was unlawfully coerced. After holding a hearing, the trial court 

denied the motion for new trial.

Appellant’s appointed appellate counsel has filed a motion to withdraw, 

accompanied by a thorough brief in support of that motion. In his cogent brief, 

counsel states that in his professional opinion, this appeal is frivolous and without 

merit. Counsel’s brief and motion meet the requirements of Anders v. California, 

386 U.S. 738, 87 S. Ct. 1396 (1967), by presenting a professional evaluation of 

the record demonstrating why counsel concluded there are no arguable grounds 

for relief. Appellant filed a brief and a supplemental brief in response to appellate 

counsel’s evaluation, raising nine points that he asserts “should warrant further 

development by another counsel on appeal.” The State filed a letter brief stating 

that it agreed with appellate counsel’s determination that the appeal is wholly 

frivolous.

Once an appellant’s court-appointed attorney files a motion to withdraw on 

the grounds that an appeal is frivolous and fulfills the requirements of Anders, we 

have a supervisory obligation to undertake an examination of the proceedings. 

See Stafford v. State, 813 S.W.2d 503, 511 (Tex. Crim. App. 1991); Banks v. 

State, 341 S.W.3d 428, 431 (Tex. App.—Houston [1st Dist.] 2009, no pet.); Mays 

v. State, 904 S.W.2d 920, 922–23 (Tex. App.—Fort Worth 1995, no pet.). In this 

evaluation, we consider the record, the arguments raised in the Anders brief, and 

issues Appellant points out in his pro se briefs. See United States v. Wagner, 

158 F.3d 901, 902 (5th Cir. 1998); In re Schulman, 252 S.W.3d 403, 409 (Tex. 
3

Crim. App. 2008). We are not to address the merits of the issues Appellant 

raises in his pro se briefing because to do so would deprive Appellant “of the 

meaningful assistance of counsel.” Bledsoe v. State, 178 S.W.3d 824, 827 (Tex. 

Crim. App. 2005). If we determine that arguable grounds for appeal exist, we 

must abate the appeal and remand the case to the trial court for appointment of 

new appellate counsel. See Schulman, 252 S.W.3d at 409; see also Smith v. 

Robbins, 528 U.S. 259, 279, 120 S. Ct. 746, 761 (2000). But if we determine that 

the appeal is wholly frivolous, we should dismiss the appeal. See Schulman, 252 

S.W.3d at 409; see also Anders, 386 U.S. at 744, 87 S. Ct. at 1400. Only after 

our independent review and after our decision between abatement or dismissal is 

made may we grant counsel’s motion to withdraw. See Penson v. Ohio, 488 

U.S. 75, 82–83, 109 S. Ct. 346, 351 (1988).

After our independent review, we conclude that there are “arguable” 

appellate issues in this case. Anders, 386 U.S. at 744, 87 S. Ct. at 1400; see 

Smith, 528 U.S. at 285, 120 S. Ct. at 764. For instance, the trial court denied 

Appellant’s request to have new trial counsel appointed even though Appellant 

had stated that his appointed trial counsel, Price Smith, had failed to properly 

communicate the charge and punishment range Appellant faced. Smith admitted 

to the trial court that the attorney-client relationship was “broken” and that 

Appellant had received “some . . . bad information” (although not from Smith) 

regarding the possible punishment range he faced. Additionally, the State 

contends that Appellant’s arguments that he received ineffective assistance of 
4

counsel cannot be addressed on direct appeal. However, the trial court held a 

hearing on Appellant’s motion for new trial and specifically received evidence on 

whether Smith was effective. Indeed, it appears Smith was unaware of or 

unwilling to pursue the motion to suppress that Appellant’s retained counsel had 

filed.2

 While we acknowledge that the trial court probably resolved these 

disputes in testimony by making credibility determinations, this record evidence 

arguably could provide grounds to pursue a claim of ineffective assistance of trial 

counsel. It further could be argued that the evidence was insufficient to link

Appellant to the contraband.3

 See Poindexter v. State, 153 S.W.3d 402, 405–06 

(Tex. Crim. App. 2005). Finally, we note that appellate counsel did not have the 

entire record when he filed his Anders brief. Specifically, we abated this appeal 

to determine the completeness of the reporter’s record regarding evidence the 

State used during punishment. The trial court held a hearing on the issue, but 

appellate counsel did not have the benefit of this record on abatement in making

his determination of the frivolity of the appeal. This abatement record arguably

could prove fruitful for appeal purposes. See Wilson v. State, 366 S.W.3d 335, 

340 (Tex. App.—Houston [1st Dist.] 2012, no pet.) (“Again, we need not say, with 

 2

Appellant retained trial counsel who was allowed to withdraw after 

Appellant refused a plea-bargain agreement and failed to pay counsel for the 

costs of proceeding to a jury trial.

3

Although Appellant gave a statement admitting possession of the 

methamphetamine, he asserted in his motion for new trial that the statement was 

illegally coerced.
5

certainty, that any complaint arising from the fact that the reporter’s record has 

been lost or destroyed will prove to be meritorious, but only that such an issue 

warrants further development by counsel on appeal.”); cf. Mason v. State, 65 

S.W.3d 120, 120 (Tex. App.—Amarillo 2001, no pet.) (denying motion to 

withdraw and striking Anders brief when counsel did not have reporter’s record 

from voir dire because “one cannot say that there is no arguable merit to an 

appeal based on the review of an incomplete record”).4

We stress that this is not an exhaustive list of arguable issues that could 

be raised on appeal and, further, that we have not determined that any of these 

arguments have merit. We conclude that appellate counsel has met his 

professional obligations under Anders and grant his motion to withdraw. But 

based on the presence of arguable appellate issues, we abate the appeal and 

remand the case to the trial court to appoint a new appellate attorney with 

directions to file a brief on the merits. See Schulman, 252 S.W.3d at 409. The 

trial court shall make the appointment and ensure that a supplemental record is 

filed in this court no later than 28 days from the date of this order. Once the 

supplemental record is filed in this court, we will automatically reinstate the 

appeal and set a new briefing schedule.

 4

Because the record on abatement was made after appellate counsel filed 

his Anders brief, we cannot say that appellate counsel failed to diligently search 

the record. Thus, denying the motion to withdraw would not be appropriate as it 

was in Mason.
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PER CURIAM

PANEL: GABRIEL, GARDNER, and WALKER, JJ.

DO NOT PUBLISH

Tex. R. App. P. 47.2(b)

DELIVERED: May 30, 2013