Court of Appeals Sixth Appellate District of Texas at TexarkanaJul 10, 2019
No. 06-19-00023-CR (Tex. App. Jul. 10, 2019)

No. 06-19-00023-CR No. 06-19-00033-CR No. 06-19-00034-CR No. 06-19-00051-CR



On Appeal from the 102nd District Court Bowie County, Texas
Trial Court Nos. 18F0805-102, 17F1218-102, 17F1212-102 & 17F1154-102 Before Morriss, C.J., Burgess and Stevens, JJ. ORDER

In cause numbers 06-19-00023-CR, 06-19-00033-CR, 06-19-00034-CR, and 06-19-00051-CR, Clifford Clark appeals from three convictions of arson and two convictions of harassment by a person in a correctional facility. Clark's attorney has filed an appellate brief in which he concludes that the appeal is frivolous and without merit. Under the requirements of Anders v. California, counsel is required to conduct a "conscientious examination" of the record and file "a brief referring to anything in the record that might arguably support the appeal." Anders v. California, 386 U.S. 738, 744 (1967).

Our independent investigation of the records in these cases, as required by the Texas Court of Criminal Appeals in Stafford v. State, 813 S.W.2d 503, 511 (Tex. Crim. App. 1991), showed that the records contain references to sealed motions to evaluate Clark's competence and sealed records of a competency evaluation. The records do not contain the substance of these sealed motions and competency evaluations and do not include a curriculum vitae or other information on the qualifications of the expert who evaluated Clark. The reporter's records further include a suggestion by Clark's counsel that Clark be evaluated to establish his sanity at the time of the offenses. Counsel's Anders brief omits any reference to the contents of the sealed documents, which were not included in the records provided to this Court. It, therefore, appears that counsel has not reviewed the sealed documents.

After conducting our own investigation of the records, we have identified several arguable issues that require additional briefing, including (1) whether "Bryan Smith, Psy. D.," was qualified to evaluate Clark under Article 46B.022 of the Texas Code of Criminal Procedure; (2)(a) whether any initial findings of incompetency triggered the procedures under subchapter D of Chapter 46B and (b) if so, whether those procedures were followed; (3) whether counsel rendered ineffective assistance in failing to formally request an evaluation on the issue of sanity at the time of the arson offenses; (4) whether Clark intelligently waived his right to a jury trial when (a) there was no written waiver of a jury trial and (b) the trial court informed Clark that all of his sentences would run concurrently, but later entered judgments running the arson convictions consecutively to the harassment convictions; (5) whether the judgments incorrectly state that Clark reached a plea bargain with the State; and (6) whether the judgments should be modified to delete duplicative court costs.

"When we identify issues that counsel on appeal should have addressed but did not, we need not be able to say with certainty that those issues have merit; we need only say that the issues warrant further development by counsel on appeal." Wilson v. State, 40 S.W.3d 192, 200 (Tex. App.—Texarkana 2001, order). In such a situation, we "must then guarantee appellant's right to counsel by ensuring that another attorney is appointed to represent appellant on appeal." Stafford, 813 S.W.2d at 511 (citing Anders, 386 U.S. at 744).

Accordingly, we grant current counsel's motion to withdraw, and we abate these cases to the trial court for the appointment of new appellate counsel. The appointment is to be made within ten days of the date of this order. Appellate counsel is to address the issues presented here, as well as any other issues that warrant further development on appeal.

A memorialization of the trial court's appointment shall be entered into the record of this case and presented to this Court in the form of supplemental clerk's records within ten days of the date of appointment.

The current submission date of July 19, 2019, is hereby withdrawn. We will establish a new briefing schedule upon our receipt of the supplemental clerk's records.


BY THE COURT DATE: July 10, 2019