Gerardo Arredondo v. State
01-16-00312-CR
| Tex. App. | Jul 18, 2017Background
- Appellant Gerardo Arredondo was tried on a capital murder indictment, found guilty by a jury, and sentenced to life imprisonment without parole.
- Appellant filed a timely appeal and appellate counsel was court-appointed.
- Appellate counsel filed a motion to withdraw and an Anders brief asserting the appeal was frivolous and that there were no arguable grounds.
- Appellant filed a pro se response. The State waived filing an appellee’s brief.
- The Court conducted an independent review required under Anders and related Texas precedent to determine whether any non-frivolous appellate issues exist.
- The Court identified issues warranting further development (including whether a lesser-included offense instruction for murder should have been submitted) and ordered the appeal abated for appointment of new counsel.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether appointed counsel properly concluded there were no arguable grounds and should be permitted to withdraw under Anders | Counsel representing Arredondo contended the appeal is frivolous and no arguable issues exist; Arredondo filed a pro se response asserting issues to be considered | The State waived filing a responsive brief and did not contest counsel's Anders motion | Court granted counsel's motion to withdraw but independently reviewed the record and found further development warranted, so withdrawal was allowed only after abatement and remand |
| Whether this Court must independently review the record to identify arguable grounds under Anders | Arredondo (via counsel) conceded lack of arguable issues; pro se response asserted possible issues | State waived; relied on record and procedural rules | Court performed independent review as required and concluded some issues warrant briefing by new counsel |
| Whether the appeal should be abated and the trial court should appoint new appellate counsel if arguable issues exist | Arredondo sought consideration of pro se issues (notably charge error) | State did not oppose abatement | Court held that because arguable issues were identified, it must abate the appeal and remand for appointment of new counsel to brief the issues |
| Whether the lesser-included offense of murder should have been submitted to the jury and, if erroneous, whether harm resulted | Arredondo’s pro se filings raised that the jury charge may have omitted murder as a lesser-included offense | Counsel’s Anders brief did not raise this; State waived response | Court specifically directed new counsel to consider and develop argument on whether murder was a required lesser-included instruction and whether any error was harmful |
Key Cases Cited
- Anders v. California, 386 U.S. 738 (1967) (procedure for counsel to withdraw when appellate attorney concludes appeal is frivolous and requirement of independent appellate review)
- Stafford v. State, 813 S.W.2d 503 (Tex. Crim. App. 1991) (reiterating Anders independent-review requirement)
- In re Schulman, 252 S.W.3d 403 (Tex. Crim. App. 2008) (defining "arguable" grounds and requiring issues that could conceivably persuade the court)
- McCoy v. Court of Appeals of Wis., Dist. I, 486 U.S. 429 (1988) (discusses standards for arguable issues and counsel’s duties)
- Bledsoe v. State, 178 S.W.3d 824 (Tex. Crim. App. 2005) (abate-and-remand procedure when appellate court finds arguable issues)
- Wilson v. State, 40 S.W.3d 192 (Tex. App.—Texarkana 2001) (noting that identified issues need only warrant further development, not show certain merit)