Court of Appeals of Texas, First District, Houston
court 10th District Court of Galveston County Trial court
ORDER OF ABATEMENT
Beth Landau Judge
was charged with the second-degree felony offense of Engaging
in Prohibited Sexual Conduct with Ancestor/Descendant.
Appellant filed a pre-trial motion to quash the indictment,
challenging Section 25.02 of the Texas Penal Code as
unconstitutional. After the trial court denied the motion to
quash, appellant pleaded guilty to the offense without an
agreed recommendation from the State regarding punishment.
The trial court found appellant guilty and assessed
punishment at eight years' imprisonment. The trial
court's certification of appellant's right to appeal
states that "the defendant has waived the right to
appeal as to guilt/innocence only." Appellant timely
filed a notice of appeal. Appellant's appointed counsel
has moved to withdraw from this appeal and filed a brief
concluding that the appeal is frivolous. See Anders v.
California, 386 U.S. 738, 744 (1967)
provided below, we abate the appeal and remand to the trial
court to (1) appoint new appellate counsel to represent
appellant and (2) hold a subsequent hearing to determine
whether an amended certification of appellant's right to
appeal should be issued.
Appointment of New Counsel on Appeal
Anders, if appointed counsel concludes after
reviewing the record and applicable law that the appeal is
without merit, counsel must advise the court, file a motion
to withdraw, and file a brief discussing any issue that might
arguably support the appeal. See id. at 744;
Kelly v. State, 436 S.W.3d 313, 318 (Tex. Crim. App.
2014). The appellate court must then perform an independent
examination of the record and the law to determine whether
the appeal is frivolous. See Anders, 386 U.S. at
744. The question before us is not who will ultimately
prevail but instead whether any non-frivolous issue exists.
If the court determines that there are arguable issues, it
must abate the appeal and remand with orders for the trial
court to appoint new counsel. See Stafford v. State,
813 S.W.2d 503, 511 (Tex. Crim. App. 1991).
on our independent review of the record and applicable law,
we conclude that a nonfrivolous issue may exist regarding
appellant's pre-trial motion challenging the
constitutionality of Penal Code Section 25.02. Accordingly,
we strike counsel's Anders brief and grant
counsel's motion to withdraw. We abate this appeal and
remand the cause for the trial court to appoint new appellate
counsel. The trial court is ordered to inform this Court in
writing of the identity of new counsel and the date of
appointment within 20 days of the date of this order.
Certification of Appellant's Right to Appeal
defendant may waive his right to appeal as a part of a plea
even when sentencing is not agreed upon, where consideration
is given by the State for that waiver. Ex parte
Broadway, 301 S.W.3d 694, 699 (Tex. Crim. App. 2009). In
this case, however, the record is insufficient to support the
trial court's certification that appellant waived his
right to appeal as to guilt/innocence because the record does
not indicate a bargained-for waiver of appellant's right
to appeal. See id. at 697- 99; Washington v.
State, 363 S.W.3d 589, 589 (Tex. Crim. App. 2012). The
Texas Rules of Appellate Procedure permit amendment of a
defective certification. See Tex. R. App. P.
25.2(f), 34.5(c)(2), 37.1, 44.4; see also Dears v.
State, 154 S.W.3d 610, 615 (Tex. Crim. App. 2005).
the trial court shall conduct a hearing within 30
days after the trial court appoints new counsel at
which a representative of the Galveston County District
Attorney's Office and appellant's new counsel shall
be present. Appellant shall also be present for the hearing
in person or, if appellant is incarcerated, at the trial
court's discretion, appellant may participate in the
hearing by closed-circuit video teleconferencing.
direct the trial court to:
1) Make findings regarding whether appellant waived his right
to appeal as to guilt/innocence and whether consideration was
given by the State for appellant's waiving his right to
2) If no consideration was given by the State for
appellant's waiving his right to appeal as to
guilt/innocence, execute an amended certification of
appellant's right to appeal indicating that this is not a