Opinion
NO. 09-19-00256-CR NO. 09-19-00257-CR NO. 09-19-00258-CR NO. 09-19-00259-CR NO. 09-19-00260-CR
08-03-2020
JIMMY SCOTT, Appellant v. STATE OF TEXAS, Appellee
On Appeal from the Criminal District Court Jefferson County, Texas
Trial Cause Nos. 08-04333 , 08-04335, 08-04483, 08-04524, 08-04525
ORDER
The State indicted Jimmy Scott in five separate causes on charges alleging he was guilty of felony theft, all state jail felonies. Scott pled guilty in each cause. The trial court sentenced Scott to two years confinement in each case and assessed restitution. However, the trial court suspended Scott's sentences and placed him on probation for five years in each of his cases, making the probations run concurrently.
Several years later, the State filed a motion asking the trial court to revoke its decision to probate Scott's sentences. When it ruled on the motion, the trial court revoked Scott's probation in Cause No. 08-04333 and sentenced him to two years in prison. The court then extended its orders placing Scott on probation in his other four cases for five additional years. Then, the trial court granted Scott's request asking the court to place him on shock probation in Cause Number 08-04333. The record shows Scott served six months of that sentence before the court, once again, released him on probation.
In 2016, the State moved to revoke the trial court's probation orders in all five cases. During the hearing on the motions, Scott pleaded "true" to the State's allegations alleging that he violated the requirements of his probation in each case. Based on the evidence in the hearing, the trial court found Scott violated the conditions established in the trial court's orders of probation, assessed Scott's punishment at two years in each case, and ordered Scott's sentence in Cause Number 08-04335 to run consecutively to his sentence in Cause Number 08-04333, his sentence in Cause Number 08-04483 to run consecutively to his sentence in Cause Number 08-04335, his sentence in Cause Number 08-04524 to run consecutively to his sentence in Cause Number 08-04483, and his sentence in Cause Number 08-04525 to run consecutively to his sentence in Cause Number 08-04524.
Scott appealed, and in each of his appeals, Scott's court-appointed appellate counsel filed a brief that presents a professional evaluation of the record. In the briefs, Scott's attorney concludes Scott's appeals are frivolous. See Anders v. California, 386 U.S. 738 (1967); High v. State, 573 S.W.2d 807 (Tex. Crim. App. 1978). We gave Scott an extension to allow him time to file pro se briefs in these appeals but he did not do so. In response to our notice, the State filed briefs. In them, the State argued but does not concede the trial court possibly committed an error in stacking Scott's sentences.
Our review of the records from the trial court reveal arguable grounds exist to support an argument supported by a merits-based brief that would address whether the trial court had the authority to stack Scott's sentences. The resolution of that issue requires arguments directed at what occurred in the probation revocation hearing, which resulted in the judgments containing the stacking orders and requires arguments explaining whether the cases were handled together or separately in the hearing and whether the trial court had the authority to stack Scott's sentences after revoking Scott's probation in Cause Number 08-04333.
See Ex parte Carter, 521 S.W.3d 344, 348 (Tex. Crim. App. 2017) (explaining that alleged errors that arise from the manner the trial court stacked sentences are the types of errors that the appellant may complain about the first time in an appeal).
Having found arguable error exists in the record, we must remand the cases to the trial court. We direct the trial court to appoint new counsel to represent Scott in these appeals. See Stafford v. State, 813 S.W.2d 503, 511 (Tex. Crim. App. 1991).
We ABATE the appeals and REMAND the cases to the trial court for an appointment of new counsel. A supplemental clerk's record containing the order appointing new counsel shall be filed with the Clerk of this Court by September 1, 2020. Scott's briefs shall be due thirty days after we reinstate the appeal. The State's brief is due thirty days after Scott filed his briefs. We remove the case from the Court's submitted docket and will re-submit Scott's appeals after the parties have filed their briefs.
ORDER ENTERED August 3, 2020.
PER CURIAM Before Kreger, Horton and Johnson, JJ.