

NO. 07-11-0029-CR
                                                         NO. 07-11-0030-CR
 
IN THE
COURT OF APPEALS
 
FOR THE
SEVENTH DISTRICT OF TEXAS
 
AT
AMARILLO
 
PANEL D
 

JULY
20, 2011
 

 
HUDSON LEE PHARRIES,  
 
                                                                                         Appellant

v.
 
THE STATE OF TEXAS,  
 
                                                                                         Appellee
___________________________
 
FROM THE 20TH DISTRICT COURT OF MILAM
COUNTY;
 
NOS. CR22,778 & CR22,781; HONORABLE
ED MAGRE, PRESIDING
 

 
Order of
Abatement
 

 
Before QUINN, C.J., and CAMPBELL and PIRTLE, JJ.
Hudson Lee
Pharries (appellant)
appeals his convictions for aggravated sexual assault of a child and indecency
with a child by contact.  Appellant plead
guilty to both indictments without an agreement as to punishment.  His court-appointed counsel filed a brief pursuant to Anders
v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), therein
asserting that a review of the record shows no reversible error.  The appellate record in this cause, however,
is missing a portion of the reporter's record and clerk’s record.  Specifically, the portion missing in the
reporter’s record is the original guilty plea hearing held on September 13,
2010, and the clerk’s record does not contain the report from Dr.
Pugliese.  The issue, therefore, is
whether court-appointed counsel may file an Anders brief when the
appellate record being reviewed is incomplete. 
For the reasons set forth below, we conclude he cannot.  
            The
purpose of an Anders brief is to support counsel's motion to
withdraw.  Through it, counsel
effectively illustrates to the court 1) that he performed a conscientious
examination of the record to discover potential error and 2) that the appeal is
frivolous.  Marsh v. State, 959
S.W.2d 224, 225 (Tex. App.–Dallas 1996, no pet.); Jeffery v. State, 903 S.W.2d 776, 779 (Tex.
App.–Dallas 1995, no
pet.).  Without a complete record,
however, it cannot be said that counsel conscientiously searched for potential
error and, as a result of that search, legitimately concluded that the appeal
was frivolous.  See Mason v. State, 65
S.W.3d 120 (Tex. App.–Amarillo 2001, no pet.) (striking the Anders brief because the
portion of the record containing the voir dire was missing); see also Marsh
v. State, 959 S.W.2d at 225-26 (striking the Anders brief and
remanding for the appointment of new counsel because the record was
incomplete).  Simply put, one cannot say
that there is no arguable merit to an appeal based upon the review of an
incomplete record. 
            In
the case at bar, appellate counsel represented in his Anders brief that
the psychological evaluation was not part of the record even though the State
requested that the trial court take judicial notice of same.  Because the original guilty plea hearing
conducted on September 13, 2010, was not transcribed and is missing from the
appellate record, and appellant’s psychological evaluation is missing as well, we
strike the Anders brief filed by appellant's counsel.  We further order the official court reporter
for the 20th Judicial District Court of Milam County to 1) transcribe all
hearings and other proceedings held in Cause Nos. CR22,778 and CR22,781, styled
The State of Texas v. Hudson Lee Pharries that have not previously been
transcribed, 2) include the transcription in a supplemental reporter's record,
and 3) file the supplemental reporter's record with the clerk of this court on
or before August 19, 2011.   Furthermore,
we order the district clerk for Milam County to include in a supplemental
clerk’s record any and all psychological evaluations (including any performed
by Dr. Pugliese of appellant) of which the trial court took judicial notice and
file same with the clerk of this court on or before August 19, 2011.  Within thirty days of the day on which the
supplemental records are filed with the clerk of this court, counsel for
appellant is ordered to 1) review the entire appellate record to determine the
presence of arguable grounds of error and 2) file with the clerk of this court
a brief addressing potential grounds of error or an Anders brief and
motion to withdraw conforming with the dictates of the law, as counsel may
choose based upon the exercise of his professional judgment.  Lastly, we deny appellate counsel's pending
motion to withdraw, at this time.     
            It is so
ordered.                                                                                 
                                                                                    Per
Curiam 
Do not publish.
 


