                                         NO. 07-09-0258-CR

                                   IN THE COURT OF APPEALS

                            FOR THE SEVENTH DISTRICT OF TEXAS

                                            AT AMARILLO

                                               PANEL A

                                         OCTOBER 20, 2010

                               ______________________________


                                JAFFICE HARRIS, III, APPELLANT

                                                   V.

                                THE STATE OF TEXAS, APPELLEE


                             _________________________________

                FROM THE 364TH DISTRICT COURT OF LUBBOCK COUNTY;

               NO. 2009-422,087; HONORABLE BRAD UNDERWOOD, JUDGE

                              _______________________________

Before CAMPBELL and HANCOCK and PIRTLE, JJ.


                                   ABATEMENT AND REMAND


          Appellant, Jaffice Harris, III, pled guilty in open court to burglary of a habitation with

intent to commit aggravated assault with a deadly weapon1 and was sentenced by a jury

to twenty-five years confinement. Appellant's counsel has filed an Anders brief and a

motion to withdraw. See Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d
1
    See Tex. Penal Code Ann. § 30.03(d) (Vernon 2003).
493 (1967). For the reasons expressed herein, we abate and remand this cause to the

trial court for appointment of new counsel.


        In support of his motion to withdraw, counsel certifies he has conducted a

conscientious examination of the record and, in his opinion, the record reflects no

potentially plausible basis to support an appeal. Anders v. California, 386 U.S. 738,

744-45, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967); In re Schulman, 252 S.W.3d 403, 406

(Tex.Crim.App. 2008).              Counsel candidly discusses why, under the controlling

authorities, the appeal is frivolous.                See High v. State, 573 S.W.2d 807, 813

(Tex.Crim.App. 1978).            Counsel has demonstrated that he has complied with the

requirements of Anders and In re Schulman by (1) providing a copy of the brief to

Appellant, (2) notifying him of his right to file a pro se response if he desired to do so, and

(3) informing him of his right to file a pro se petition for discretionary review. In re

Schulman, 252 S.W.3d at 408.2


        When faced with an Anders brief, an appellate court has a duty to conduct a full

examination of the proceeding, and if its independent inquiry reveals a non-frivolous or

arguable ground for appeal, it must abate the proceeding and remand the case to the trial

court so that new counsel can be appointed to brief the issues. See Penson v. Ohio, 488

        2
          Notwithstanding that Appellant was informed of his right to file a pro se petition for discretionary
review upon execution of the Trial Court=s Certification of Defendant=s Right of Appeal, counsel must
comply with Rule 48.4 of the Texas Rules of Appellate Procedure which provides that counsel shall within
five days after this opinion is handed down, send Appellant a copy of the opinion and judgment together
with notification of his right to file a pro se petition for discretionary review. In re Schulman, at 408 n.22 & at
411 n.35.


                                                        2
U.S. 75, 109 S.Ct. 346, 102 L.Ed.2d 300 (1988); Bledsoe v. State, 178 S.W.3d 824

(Tex.Crim.App. 2005).


       In this case, the Clerk's Record reflects a judgment signed July 6, 2009. Under

the judgment's heading "special findings or orders," the trial court orders Appellant to pay

court-appointed attorney fees of $5,467.50 and court costs of $615.00. A review of the

Reporter's Record does not reveal any evidence pertaining to Appellant's ability to

reimburse attorney's fees, nor does it contain any determination by the court of

Appellant's ability to pay those fees. See TEX. CODE CRIM. PROC. ANN. art. 26.05(g)

(Vernon Supp. 2009). Rather, the record shows Appellant was appointed trial counsel

and, later on July 24, 2009, appellate counsel was appointed due to his indigency.


       A judgment ordering the reimbursement of court-appointed attorney's fees without

sufficient evidence of a defendant's ability to pay can constitute error cognizable on

appeal. See Mayer v. State, 309 S.W.3d 552 (Tex.Crim.App. 2010).


       Based upon this record, we find at least two arguable grounds for appeal exist:


       (1)    Does an order for the reimbursement of attorney's fees have to be included
              in the oral pronouncement of sentence as a precondition to its inclusion in
              the trial court's written judgment? See Weir v. State, 278 S.W.3d 364, 366
              (Tex.Crim.App. 2009).

       (2)    Was the evidence legally sufficient to show that Appellant had financial
              resources that would enable him to offset, in part or in whole the costs of
              legal services provided?     See Mayer v. State, 309 S.W.3d 552
              (Tex.Crim.App. 2010).



                                             3
      Having concluded that arguable grounds for appeal exist, we grant Appellant=s

counsel=s motion to withdraw, abate this proceeding, and remand this cause to the trial

court for the appointment of new counsel. See Bledsoe, 178 S.W.3d at 827; Stafford v.

State, 813 S.W.2d 503, 511 (Tex.Crim.App. 1991).


      We direct the trial court to appoint new counsel to represent Appellant on appeal

by November 1, 2010.      The trial court shall furnish the name, address, telephone

number, and state bar number of new counsel to the Clerk of this Court immediately after

the appointment of counsel is ordered. Finally, the trial court shall cause its order

appointing counsel to be included in a supplemental clerk=s record which shall be filed

with the Clerk of this Court by November 12, 2010. Appellant=s brief shall address the

issues we have identified, together with any other arguable issues identified by counsel,

and shall be due forty-five days from the date of the trial court=s appointment of new

counsel. All other appellate deadlines shall be in accordance with the Texas Rules of

Appellate Procedure.


      It is so ordered.


                                                        Per Curiam

Do not publish.




                                           4
