Opinion
NO. 03-18-00766-CR
07-17-2020
Bryan Wayne Whillhite, Appellant v. The State of Texas, Appellee
ON REMAND
FROM THE 391ST DISTRICT COURT OF TOM GREEN COUNTY
NO. D-13-0586-SA , THE HONORABLE BRAD GOODWIN, JUDGE PRESIDING ORDER AND MEMORANDUM OPINION
Pursuant to the procedures set forth in Anders v. California, 386 U.S. 738, 744 (1967), this Court previously affirmed the trial court's decision to revoke the appellant Bryan Wayne Whillhite's deferred adjudication community supervision and adjudicate Whillhite's guilt for the charged offenses of sexual assault of a child, see Tex. Penal Code § 29.03, and online solicitation of a minor, see id. § 33.021(b). In doing so, we conducted an independent review of the record and, as noted in our opinion, observed that Section 33.021(b) of the Texas Penal Code—the statute governing Whillhite's conviction for online solicitation of a minor—had been declared unconstitutional by the Texas Court of Criminal Appeals in 2013, before Whillhite was convicted of the offense. See Whillhite v. State, No. 03-18-00766-CR, 2020 Tex. App. LEXIS 14, at *1 n.1 (Tex. App.—Austin Jan. 3, 2020) (mem. op., not designated for publication) (citing Ex parte Lo, 424 S.W.3d 10, 27 (Tex. Crim. App. 2013)), rev'd, No. PD-0095-20, 2020 Tex. Crim. App. Unpub. LEXIS 229 (Tex. Crim. App. June 10, 2020) (per curiam) (not designated for publication). Nevertheless, we concluded that Willhite's conviction for the offense of online solicitation of a minor was not reviewable in his appeal of the revocation of his community supervision and that the record did not otherwise present any arguably meritorious grounds for review. See Whillhite, 2020 Tex. App. LEXIS 14, at *1 n.1 (citing Tex. Code Crim. Proc. arts. 42A.108, 42A.755 ("When the defendant is notified that defendant's community supervision is revoked for a violation of the conditions of community supervision and the defendant is called on to serve a sentence . . . the defendant may appeal the revocation.")). Consequently, we granted counsel's motion to withdraw and affirmed the trial court's judgment adjudicating guilt. Id.
On review, the Texas Court of Criminal Appeals concluded that its prior opinions in Smith v. State, 463 S.W.3d 890, 895 (Tex. Crim. App. 2015), and Nix v. State, 65 S.W.3d 664, 667-68 (Tex. Crim. App. 2001), along with Ex parte Shay, 507 S.W.3d 731, 735 (Tex. Crim. App. 2016), "at the very least, present an arguable ground for relief that could be raised even on appeal from the revocation proceedings: if the trial court had no subject matter jurisdiction over appellant's prosecution under section 33.021(b) because the statute had been declared unconstitutional, then appellant's conviction was void and he could raise the issue on appeal from the revocation proceedings." Whillhite, 2020 Tex. Crim. App. Unpub. LEXIS 229, at *4. "As such, the court of appeals was required to abate and remand to the trial court with orders to appoint counsel to present this and any other ground that might support the appeal." Id. Consequently, the Court of Criminal Appeals vacated our judgment and remanded the case to this Court for further action. Id.
In accordance with the opinion from the Court of Criminal Appeals, we abate and remand this appeal. The trial court is instructed to appoint substitute counsel to file a brief addressing the above issue, along with any other issue that counsel deems meritorious. A copy of the order appointing substitute counsel shall be forwarded to this Court no later than August 17, 2020. Substitute counsel's brief will be due thirty days after the date of appointment.
/s/_________
Chari L. Kelly, Justice Before Justices Goodwin, Baker, and Kelly Abated and Remanded Filed: July 17, 2020 Do Not Publish