Joe Bob Davis v. the State of Texas

                                      In The
                                 Court of Appeals
                        Seventh District of Texas at Amarillo

                                        No. 07-23-00143-CR


                                 JOE BOB DAVIS, APPELLANT

                                                  V.

                              THE STATE OF TEXAS, APPELLEE

                             On Appeal from the 31st District Court
                                      Gray County, Texas
                 Trial Court No. 11847, Honorable Steven R. Emmert, Presiding

                                       December 19, 2023
                      ORDER OF ABATEMENT AND REMAND
                    Before QUINN, C.J., and DOSS and YARBROUGH, JJ.

       Following a plea of not guilty, appellant Joe Bob Davis was convicted by a jury of

delivery of a controlled substance, namely methamphetamine, and sentenced to sixty-

one years of confinement. 1 His appointed counsel on appeal subsequently filed a motion

to withdraw supported by an Anders 2 brief. Having found an arguable issue warranting



       1  Appellant pleaded “true” to each of the two enhancement paragraphs contained within the
indictment.
       2 See Anders v. California, 

, 

, 

 493 (1967).
appeal, we grant counsel’s motion to withdraw and remand the cause to the trial court for

appointment of new appellate counsel.

      Appellate counsel filed an Anders brief that discussed her duty under the law and

her evaluation of the record. She also identified several potential issues, ultimately

determining each was frivolous. However, our independent review of the record leads us

to conclude otherwise.

      The record includes an objection to the admission of certain extraneous evidence

involving the events that led to appellant’s detention.      That evidence included the

testimony of an officer about a pre-existing investigation, which evidence was utilized to

purportedly show he was trafficking in, rather than merely possessing, a controlled

substance. At trial, the parties and the court discussed at length the admissibility of the

information. Part of the exchange encompassed the question of whether defense counsel

“opened the door” to the evidence. The merits of appellant’s objection to the evidence

warrants attention on appeal.

      Appellate attorneys must exercise caution in filing Anders briefs. Our sister court

in Dallas recently issued an opinion thoroughly explaining the Anders procedure and how

it is to be properly utilized by appellate counsel. See Limauro v. State, 

(Tex. App.—Dallas 2023, no pet.). It observed that an Anders brief should be filed when

appellate counsel can identify no non-frivolous issues. Id. at 372. Properly executed, an

Anders brief “is an exhaustive endeavor.” Id. Additionally, proceeding down the Anders

road can present a troubling challenge to the attorney-client relationship. The effect may

be less consequential when the defendant pleads guilty.        Id.   However, that is not

necessarily true with a jury trial. Utilizing Anders in that circumstance should be rare,


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given the plethora of actual issues normally involved. Id. Indeed, if there were issues

worth trying, there are probably issues worth appealing. Id.

       Moreover, in Anders practice, an issue is frivolous or lacking merit when it has no

basis in law or fact and “cannot conceivably persuade the court.” Bowen v. State, No.

05-21-00845-CR, 

, at *1 n.2 (Tex. App.—Dallas Sep. 15,

2023, no pet.) (mem. op. on reh’g, not designated for publication). An example of this

may be when issues requiring preservation were not preserved. Nor does the likelihood

of prevailing on an issue having basis in fact or law render an issue frivolous or not.

Limauro, 675 S.W.3d at 374. An example of this may arise when the harmless error rule

favors the issue’s rejection.

       We further note that appellate attorneys should avoid usurping the court’s role.

Proper Anders analysis illustrates “how case law and the facts foreclose the issue.”

Limauro, 675 S.W.3d at 375.       In short, appointed counsel advocates the arguable,

irrespective of the likelihood of success. We are charged with determining if the arguable

favors adoption.

       Counsel at bar actually urged an arguable issue in her Anders brief but mistakenly

deemed it frivolous. When at least one issue is arguable, Anders is not the proper mode

of continuation.    Accordingly, we grant counsel’s motion to withdraw, abate the

proceeding, and remand the cause to the trial court. On remand, the trial court shall, by

written order, appoint new counsel to represent appellant on appeal. The name, address,

email address, telephone number, and State Bar number of newly appointed counsel

must be specified in the order. The trial court will then cause its order to be filed in a

supplemental clerk’s record with the clerk of this court no later than January 12, 2024.


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      The deadline by which newly appointed counsel must file an appellant’s brief or

other brief addressing the aforementioned question of the admissibility of extraneous

evidence and any other arguable issues he or she may encounter is February 29, 2024,

unless otherwise extended.        Newly appointed counsel may also request the

supplementation of the appellate record as needed. Such supplementation, if any, must

be requested by written motion filed with the clerk of this court before February 15, 2024.

      It is so ordered.



                                                       Per Curiam


Publish.




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