Perryman v. State

ABATEMENT ORDER

PER CURIAM.

This is the third time this appeal has been abated. The first abatement was for the appointment of appellate counsel. Counsel was appointed. That counsel filed an Anders brief. Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967). Upon our independent review, we identified an arguable issue regarding the trial court’s failure to appoint trial counsel. We again abated the appeal, in compliance with our precedent, for the appointment of new counsel to brief the issue. See Perryman v. State, No. 10-02-00279-CR (Tex.App.-Waco Aug. 18, 2004, order) (per cu-riam) (not designated for publication). New counsel has now also filed an Anders brief. The new Anders brief fails to address the issue expressly identified in our *779last abatement order, namely the failure of the trial court to appoint trial counsel. So we are required to, by our precedent, again abate this appeal for the appointment of yet another attorney. Guerrero v. State, 64 S.W.3d 436, 441 (Tex.App.-Waco 2001, order) (per curiam).

Further, counsel has failed to comply with this Court’s procedures regarding Anders appeals. This failure is demonstrated by his motion to withdraw directed to this Court. We have repeatedly held we cannot grant such a motion. See Sowels v. State, 45 S.W.3d 690, 692-94 (Tex.App.-Waco 2001, no pet.) (Waco Court procedures for Anders cases).

As noted in the previous abatement order, we conducted an independent review of the record and determined there is at least one arguable ground for appeal. See Stafford v. State, 813 S.W.2d 503, 511 (Tex.Crim.App.1991). Under the version of Article 64.01 in effect at the time that Appellant filed his motion, “If a convicted person informs the convicting court that the person wishes to submit a motion under this chapter and if the court determines that the person is indigent, the court shall appoint counsel for the person.” Act of Apr. 3, 2001, 77th Leg., R.S., ch. 2, § 2, art. 64.01(c), 2001 Tex. Gen. Laws at 2 (amended 2003). Appellant filed a Motion for Forensic DNA Testing and Appointment of Counsel. The record does not show that the trial court considered whether Appellant is indigent or considered the appointment of counsel at trial. See Gray v. State, 69 S.W.3d 835, 837 (Tex.App.Waco 2002, order) (per curiam). Appellant was arguably entitled to counsel at trial. See id. Appellant’s appeal presents an issue of arguable merit.

Appellant’s new counsel should personally review the record to determine what issues should be raised in this appeal, including whether the issue identified by this Court should be raised, and if not, why the issue identified has no arguable merit. See Guerrero, 64 S.W.3d at 441 n. 5.

We abate the appeal for the appointment of new counsel. See Guerrero, 64 S.W.3d at 441. Assuming that the trial court has not already permitted Appellant’s present appointed appellate counsel to withdraw, counsel must file a motion to withdraw in that court if he desires to withdraw. See Guerrero at 441; Sowels, 45 S.W.3d at 692. The trial court’s order appointing new appellate counsel must be filed with the Clerk of this Court in a supplemental clerk’s record within fifteen (15) days of the date of this Order. Counsel’s brief is due thirty (30) days after appointment.

Chief Justice GRAY concurring.