Opinion
No. 10-13-00291-CR
03-27-2014
JOSEPH ROBERT MCELWAIN, JR., Appellant v. THE STATE OF TEXAS, Appellee
From the 249th District Court
Johnson County, Texas
Trial Court No. F46929
ORDER
Joseph Robert McElwain, Jr. was convicted of the offense of burglary of a habitation and sentenced to 15 years in prison. TEX. PENAL CODE ANN. § 30.02(c)(2) (West 2011). Counsel for McElwain filed a motion to withdraw as counsel and a brief in support of his motion pursuant to Anders v. California. See Anders v. California, 386 U.S. 738, 87 S. Ct. 1396, 18 L. Ed. 2d 493 (1967). We abated this appeal to the trial court for the entry of an order withdrawing the appointment of present counsel and for the appointment of new counsel because, based on our independent review of the record, we found an arguable ground for appeal. McElwain v. State, No. 10-13-00291-CR, 2014 Tex. App. LEXIS 2661 (Tex. App.—Waco Mar. 6, 2014, order) (publish).
New counsel has been appointed. Accordingly, this appeal is reinstated, and counsel's brief is due 30 days from the date of this order. Previous counsel's motion to withdraw is dismissed as moot.
PER CURIAM Before Chief Justice Gray,
Justice Davis, and
Justice Scoggins
(Justice Scoggins concurs with a note)*
Appeal reinstated
Motion dismissed
*("Justice Scoggins concurs in the order of the Court. I concur to the extent that it reinstates this appeal; however, as stated in the dissent in the underlying opinion, see McElwain v. State, No. 10-13-00291-CR, ___ S.W.3d ___ , 2014 Tex. App. LEXIS 2661, at **5-13 (Tex. App.—Waco Mar. 6, 2014, no pet. h.), I still do not believe that briefing is necessary to address the trial court's assessment of appellant's court-appointed attorney's fees. Based on the case law presented in the dissent, I believe that, in the interest of judicial economy, this Court has the power to reform the judgment to delete the court-appointed attorney's fees and affirm the judgment as modified.")