dissenting.
Before the State accepts the holding of the majority that new counsel must be appointed, the Court of Criminal Appeals should have the opportunity to review the holding in light of Smith v. Robbins. Smith v. Robbins, 528 U.S. 259, 120 S.Ct. 746, 145 L.Ed.2d 756 (2000). The majority “jumps-the-gun” in at least two ways. First, even before counsel has reviewed the confession to reach a conclusion that it could be argued as being involuntary, the majority reaches that conclusion; and what counsel decides becomes irrelevant. Second, we tell the trial court that new counsel must be appointed to represent the defendant before it has been determined that appellate counsel cannot zealously represent his client.
With regard to the first issue, it is clear from the recitation of facts in the majority opinion that appointed counsel did not evaluate the voluntariness of the confession. This oversight was because, in reb-anee on the Helms rule, counsel determined that Guerrero had waived any error which may have occurred prior to the entry of his guilty plea. Helms v. State, 484 5.W.2d 925, 927 (Tex.Crim.App.1972). But as the majority notes, the Helms rule has been modified by Young. Young v. State, 8 S.W.3d 656, 666-667 (Tex.Crim.App.2000). It is obvious from his brief that counsel failed to note the modification of the rule. Thus, counsel has never evaluated whether the voluntariness of the confession is an issue of arguable merit.
*442The brief must “contain a professional evaluation of the record demonstrating why, in effect, there are no arguable grounds to be advanced.” High v. State, 573 S.W.2d 807, 812 (Tex.Crim.App.1978). Because of counsel’s belief that the Helms rule prevented this Court’s consideration of issues that occurred prior to the entry of the plea, including the voluntariness of the confession, the brief evidences a failure to conduct a professional evaluation of the entire record in search of issues of arguable merit. Just as we did in Beard, we should set aside the submission of this case and order that counsel rebrief the case with the additional guidance on the proper application of the modified Helms rule. See Beard v. State, No. 10-01-040-CR (Tex.App.—Waco July 18, 2001, order)(not designated for publication).
Next, even if we properly determined there is an issue of arguable merit, we should not remand with the instruction to appoint new counsel, rather we should advise appellate counsel appointed by the trial court of the issues of arguable merit that we have identified and which must be briefed. If, for any reason, counsel is unable to zealously represent the appellant on the issues that we have identified, and any other issue which comes to counsel’s attention while conducting the additional briefing, counsel may file a motion to withdraw with the trial court so that new counsel may be appointed to zealously represent the appellant.
This is in stark contrast to the prior procedure that required appointment of new counsel once appellate counsel determined that the appeal was frivolous. Wilson v. State, 955 S.W.2d 693, 698 (Tex.App.—Waco 1994, order). We based the prior procedure on the Court of Criminal Appeals’ interpretation of Anders in the Stafford case. In Stafford, the Court stated:
As we read Anders, counsel filing a frivolous brief must be allowed to withdraw from the case and consequently cannot be ordered to argue grounds that she had previously determined to be without merit.
Stafford v. State, 813 S.W.2d 503, 511 (Tex.Crim.App.1991). The same Court however had, prior to the decision in Anders, indicated that in this situation the trial court should not let appointed counsel withdraw unless other counsel was appointed, thus implying that the original counsel could continue to represent the appellant. High v. State, 573 S.W.2d 807, 811 (Tex.Crim.App. [Panel Op.] 1978).
In Smith v. Robbins, the United States Supreme Court made it clear that Anders did not require the appointment of new counsel. Smith v. Robbins, 528 U.S. 259, 265, 120 S.Ct. 746, 753, 145 L.Ed.2d 756, 767 (2000). The Supreme Court went to great pains to tell us that the holding in Anders was not the only constitutionally permitted method of dealing with frivolous appeals of indigents in criminal cases. The Court obviously was concerned about the number of courts that had viewed An-ders as the only constitutionally accepted method. The Court of Criminal Appeals and this Court were no exceptions. It is clear in Stafford that the Court of Criminal Appeals read Anders as a constitutional requirement to appoint new counsel. Now it is clear that it is not. As the Court stated in Smith:
In Pennsylvania v. Finley, 481 U.S. 551, 107 S.Ct. 1990, 95 L.Ed.2d 539 (1987), we explained that the Anders procedure is not “an independent constitutional command,” but rather is just “a prophylactic framework” that we established to vindicate the constitutional right to appellate counsel announced in Douglas. 481 U.S. at 555, 107 S.Ct. 1990. We did not say that our Anders procedure was *443the only prophylactic framework that could adequately vindicate this right; instead, by making clear that the Constitution itself does not compel the Anders procedure, we suggested otherwise.
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Finally, any view of the procedure we described in the last section of Anders that converted it from a suggestion into a straitjacket would contravene our established practice, rooted in federalism, of allowing the States wide discretion, subject to the minimum requirements of the Fourteenth Amendment, to experiment with solutions to difficult problems of policy. In Griffin v. Illinois, 351 U.S. 12, 76 S.Ct. 585, 100 L.Ed. 891 (1956), which we invoked as the foundational case for our holding in Anders, see Anders, 386 U.S. at 741, 87 S.Ct. 1396, we expressly disclaimed any pretensions to rulemaking authority for the States in the area of indigent criminal appeals. We imposed no broad rule or procedure but merely held unconstitutional Illinois’s requirement that indigents pay a fee to receive a trial transcript that was essential for bringing an appeal. Justice Frankfurter, who provided the necessary fifth vote for the holding in Griffin, emphasized that it was not for this Court “to tell Illinois what means are open to the indigent and must be chosen. Illinois may prescribe any means that are within the wide area of its constitutional discretion” and “may protect itself so that frivolous appeals are not subsidized and public moneys not needlessly spent.” Griffin, 351 U.S. at 24, 76 S.Ct. 585 (opinion concurring in judgment). He added that while a State could not “bolt the door to equal justice,” it also was not obliged to “support a wasteful abuse of the appellate process.” Ibid. The Griffin plurality shared this view, explaining that the Court was not holding “that Illinois must purchase a stenographer’s transcript in every case where a defendant cannot buy it. The Supreme Court [of Illinois] may find other means of affording adequate and effective appellate review to indigent defendants.” Id., at 20, 76 S.Ct. 585.
In a related context, we stated this basic principle of federalism in the very Term in which we decided Anders. We emphatically reaffirmed that the Constitution “has never been thought [to] establish this Court as a rule-making organ for the promulgation of state rules of criminal procedure.” Spencer v. Texas, 385 U.S. 554, 564, 87 S.Ct. 648, 17 L.Ed.2d 606 (1967) (citing, inter alia, Griffin, supra). Accord Medina v. California, 505 U.S. 437, 443-444, 447-448, 112 S.Ct. 2572, 120 L.Ed.2d 353 (1992). Justice Stewart, concurring in Spencer, explained further:
“If the Constitution gave me a roving commission to impose upon the criminal courts of Texas my own notions of enlightened policy, I would not join the Court’s opinion.... [But][t]he question is whether those procedures fall below the minimum level the Fourteenth Amendment will tolerate. Upon that question, I am constrained to join the opinion and judgment of the Court.” 385 U.S. at 569, 87 S.Ct. 648 (concurring opinion).
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In short, it is more in keeping with our status as a court, and particularly with our status as a court in a federal system, to avoid imposing a single solution on the States from the top down. We should, and do, evaluate state procedures one at a time, as they come before us, see Murray [v. Giarratano, 492 U.S. 1], supra, at 14, 109 S.Ct. 2765[, 106 L.Ed.2d 1 (1989)], while leaving “the more challenging task of crafting appropriate procedures ... to the laboratory *444of the States in the first instance.” Cruzan v. Director, Mo. Dept. of Health, 497 U.S. 261, 292, 110 S.Ct. 2841, 111 L.Ed.2d 224 (1990) (O’CONNOR, J., concurring) (citation and internal quotation marks omitted). We will not cavalierly “imped[e] the States’ ability to serve as laboratories for testing solutions to novel legal problems.” Arizona v. Evans, 514 U.S. 1, 24, 115 S.Ct. 1185, 131 L.Ed.2d 34 (1995)(GINSBURG, J., dissenting). Accordingly, we hold that the Anders procedure is merely one method of satisfying the requirements of the Constitution for indigent criminal appeals. States may — and, we are confident, will — craft procedures that, in terms of policy, are superior to, or at least as good as, that in Anders. The Constitution erects no barrier to their doing so.
Smith, 120 S.Ct. at 757-759.
In Smith, the United States Supreme Court validated a procedure that would allow the issues identified by the court to be briefed by the same counsel that had filed a Wende brief, notwithstanding that the filing of a Wende brief implied a determination by counsel that the appeal was frivolous. Id. at 753 (citing People v. Wende, 25 Cal.3d 436, 441-442, 600 P.2d 1071, 1074-1075, 158 Cal.Rptr. 839 (1979)).
The Wende procedure was adopted by the California Supreme Court to deal with the situation in appeals by indigent criminal defendants when appointed counsel had determined that the appeal was frivolous. The United States Supreme Court, while validating the procedure, recognized the dilemma in which counsel was placed between zealously representing the client and the duty to not file frivolous appeals taking up precious judicial resources.
In this case I likewise recognize the waste of taxpayer funds by sending this case back to the trial court with an instruction that new counsel must be appointed. The taxpayers of Brazoria County have already paid for an attorney to review the trial court proceeding and evaluate the merits of an appeal. That is the attorney that can most efficiently file a brief on the issues identified by this Court. We should not require the taxpayers to pay yet another attorney to do all the work necessary to again review the entire case when there is no constitutional or statutory prohibition preventing the original appointed appellate attorney from doing the additional briefing.
As noted by the majority we have determined that we do not have the authority to grant counsel’s motion to withdraw. Enriquez v. State, 999 S.W.2d 906, 908 (Tex.App.—Waco 1999, order, no pet.). We have applied this holding in the context of Anders. Sowels v. State, 45 S.W.3d 690, 692 (Tex.App.—Waco 2001, no pet. h.). After a number of cases holding to the same effect, the First Court of Appeals reversed themselves and reverted to utilizing the rule from Stafford. Stephens v. State, 35 S.W.3d 770, 771 (Tex.App.—Houston [1st Dist.] 2000, no pet.) (overruling Guzman v. State, 23 S.W.3d 381 (Tex.App.—Houston [1st Dist.] 1999, no pet.)). If the majority is right that Stafford is the constitutionally required procedure, notwithstanding Stafford’s reliance on the interpretation of Anders that the United States Supreme Court has told us is improper, then the majority errs in holding that we do not have the authority to grant counsel’s motion to withdraw because that is what the Court of Criminal Appeals told us to do in Stafford. See also Wilson v. State, 40 S.W.3d 192 (Tex.App.—Texarkana 2001, no pet.).
Finally, a word about the holding of this case. When the discussion regarding the “challenge” to the voluntariness of the confession and the making of an open plea is *445analyzed closely, a careful reader will note that an Anders brief is improper because an attorney or the client can always make voluntariness an issue of arguable merit. This is untenable. These issues must be analyzed in light of the appellate record. If the appellate record does not contain some indication that the confession or plea may have been involuntary, the appeal of these issues is frivolous. In this case, the majority is not relying on the appellate record to “identify” an arguable issue, as the reviewing lawyer is required to do. Rather, the majority relies on the comments in the defendant’s pro se brief or response. These comments are outside the appellate record. They may ultimately provide grounds for an attack on the judgment by habeas corpus, but not by direct appeal.
The real losers as a result of the process we apply today include not only the taxpayers of Brazoria County that must fund yet another review of this entire case, but every citizen of Texas. This resolution not only delays the ultimate disposition of this case, but it also consumes judicial resources that could be devoted to the disposition of cases that have merit. Having reviewed the entire record in this case and finding no issue of arguable merit, I would affirm the conviction. As an alternative, I would set aside the submission of this case and order appellate counsel to evaluate the entire record and prepare another brief for this Court in light of the modified Helms rule. Because the majority does not, I respectfully dissent.