Opinion
No. 10-05-00218-CR
opinion delivered and filed May 30, 2007.
Appeal from the 361st District Court Brazos County, Texas Trial Court No. 04-03224-CRF-361.
DISSENTING OPINION
For the reasons expressed in Villanueva v. State, I believe the majority has erred in its evaluation and treatment of this Anders appeal. Villanueva v. State, 209 S.W.3d 239, 249-252 (Tex.App. — Waco 2006, no pet.) (Gray, C.J., concurring). I will not elaborate further than I did in Villanueva about the reasons that we should not engage in the extended discussion and analysis of issues that are frivolous or without arguable merit in what is labeled an Anders opinion. The majority's opinion is clearly not an Anders opinion. This is evidenced by the Court's determination of the issues raised in Garner's response to his attorney's Anders brief. After the majority reviews and concludes that the issue identified by Garner's appointed counsel is without arguable merit, i.e. frivolous, the majority then concludes the next ten issues with the following determinations:
1. Written statement — error harmless;
2. Detective Matthews' testimony — error in admitting testimony harmless;
3. Jury instruction — instruction proper;
4. Improper jury argument — failed to preserve;
5. Improper jury argument — failed to preserve;
6. Sergeant Peters' testimony;
a. Hearsay testimony — objection does not comport with complaint on appeal;
b. Hearsay testimony;
i. Hearsay — harmless error,
ii. Extraneous acts — complaint not preserved,
iii. Confrontation clause violation — complaint not preserved,
c. More extraneous acts — error not preserved;
7. Extraneous offense (tampering with witnesses) — error not preserved;
8. Extraneous offense (smoking some drugs) — error not preserved;
9. Hearsay, speculation, and extraneous offenses (characterized by the majority as over 50 citations to the record, much of which was elicited by Garner's own counsel) — complaints are not preserved; and
10. Deadly weapon finding — court did not err in entering the affirmative finding of the use of a deadly weapon.
It is obvious that in these ten issues, some containing numerous sub-issues, the Court has not made the proper determination, which would be that the issue is frivolous or without arguable merit, but instead briefs and discusses the merits, including preservation, of the issue and then makes a determination as to the disposition of the merits of each of the issues. While the majority has found that none of the issues supports a reversal of the decision, it does not equate to the issues being frivolous or without arguable merit.
All of the foregoing excursions into the discussion of these issues normally results in my concurrence in the judgment but not the opinion of the Court. See e.g., Villanueva, 209 S.W.3d at 249-252. In this appeal, however, I do not conclude that none of the ten issues identified by Garner, in response to his attorney's Anders brief, are lacking in " arguable merit."
Remembering that our duty in an Anders appeal is to independently determine that there are no issues of arguable merit presented on the record of the appeal, I cannot join the majority in its determination.
If nothing else, given the number of issues, errors, and complaints which the majority has concluded were not preserved at trial, there is at least an arguable issue of the ineffective assistance of counsel. I believe Garner even raised this issue in his 9th issue; however, the majority would not review the complaint because "the substance of his argument does not address this claim." That is a briefing requirement, and what the majority is reviewing should not be considered or treated as Garner's brief. I have seen an issue on ineffective assistance of counsel briefed and argued by attorneys when there was far less merit to the argument than what is presented by this record.
Because there is at least one arguable issue, I do not make any conclusions but would remand this proceeding to the trial court for the appointment of new counsel to brief this issue and any other issue identified by new counsel.
This Court has previously required the briefing of arguably meritorious issues when multiple counsel have failed to identify the issue, and stood firm in our conviction that the issue was arguable and needed to be briefed by counsel. Perryman v. State, 159 S.W.3d 778 (Tex.App.-Waco 2005, order) (abated third time for the appointment of new appellate counsel). I would abate this appeal for the appointment of new counsel so that the merits of the issues can be properly presented to this Court for a determination.