                                    NO. 07-06-0441-CR

                              IN THE COURT OF APPEALS

                       FOR THE SEVENTH DISTRICT OF TEXAS

                                      AT AMARILLO

                                         PANEL B

                                 FEBRUARY 9, 2007
                          ______________________________

                       HENRY ARRIZOLA RAMIREZ, APPELLANT

                                             V.

                          THE STATE OF TEXAS, APPELLEE
                        _________________________________

               FROM THE 242ND DISTRICT COURT OF HALE COUNTY;

                  NO. B16665-0602; HONORABLE ED SELF, JUDGE
                       _______________________________


Before QUINN, C.J., and CAMPBELL and HANCOCK, JJ.


                            ON ABATEMENT AND REMAND


       Appellant, Henry Arrizola Ramirez, appeals his conviction for unauthorized absence

from a correctional facility. Appellant’s attorney has filed a brief in compliance with Anders

v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), and certifies that there

are no non-frivolous issues to appeal. Because of the court’s concern regarding effective

representation of appellant on appeal, we grant attorney’s motion to withdraw, abate the

appeal, and remand the case back to the trial court for appointment of new counsel.
                                       Background


       Appellant was charged with unauthorized absence from a correctional facility,

assault, and forgery. After a jury trial, appellant was found guilty of unauthorized absence

from a correctional facility and misdemeanor assault. Appellant has appealed only the

conviction of unauthorized absence from a correctional facility. His appellate counsel, has

filed a motion to withdraw along with an Anders brief. Anders, 386 U.S. at 744-45.


       In cases where an Anders brief has been filed, we face two interrelated tasks as we

consider counsel's motion to withdraw. We must first satisfy ourselves that the attorney

has provided the client with a diligent and thorough search of the record for any arguable

claim that might support the appeal, and then we must determine whether counsel has

correctly concluded the appeal is frivolous. See McCoy v. Court of Appeals of Wisconsin,

Dist. 1, 486 U.S. 429, 442, 108 S.Ct. 1895, 100 L.Ed.2d 440 (1988); High v. State, 573

S.W.2d 807, 813 (Tex.Crim.App. 1978).


       In an Anders brief, counsel’s discussion of the evidence adduced at trial must point

to any pertinent testimony found in the record, discuss any objections made during trial,

discuss the trial court’s ruling on the objections, and why the trial court’s rulings were

correct or why appellant was not harmed by the rulings of the court. Johnson v. State, 885

S.W.2d 641, 646 (Tex.App.–Waco 1994, writ ref’d). A cursory review of the evidence is

inadequate under Anders and its progeny, Stafford v. State, 813 S.W.2d 503, 510 n.3

(Tex.Crim.App. 1991), and is of no assistance to the court. High, 573 S.W.2d at 812.

Further, appellate counsel who has filed a brief stating that there are no arguable grounds


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for appeal and who has filed a motion to withdraw must be allowed to withdraw. See

Stafford, 813 S.W.2d at 511.


       In this matter, appellant’s brief was due to be filed no later than January 4, 2007.

After failing to receive appellant’s brief in a timely manner, this court notified counsel by

letter dated January 11 of the past due brief and requested a response by January 22.

On January 23rd, this court received a motion to withdraw, an Anders brief, and a copy of

the attorney’s letter informing appellant of the filing of the Anders brief.


       “The constitutional requirement of substantial equality and fair process can only be

attained where counsel acts in the role of an active advocate in behalf of his client, as

opposed to that of amicus curiae . . . .”         Stafford v. State, 813 S.W.2d 503, 509

(Tex.Crim.App. 1991) (quoting Anders, 386 U.S. at 744). In this matter, counsel has filed

the brief late. In his letter to appellant, counsel refers to Appellant’s Amended Brief and

the Amended Motion to Withdraw. In fact, counsel has filed an Appellant’s Brief and a

Motion to Withdraw, but has amended neither. In the Anders brief, counsel’s analysis

consists of a single paragraph professing to have read and reviewed the entire record and

that counsel is unable to find any non-frivolous issues. This analysis is similar to counsel’s

first attempt at an Anders brief in Stafford which was determined to be unacceptable. See

Stafford, 813 S.W.2d at 510. Appellate counsel did not make specific references to the

record, either supporting or challenging the conviction. See Johnson v. State, 885 S.W.2d

641, 646-47 (Tex.App.–Waco 1994, pet. ref'd). Furthermore, counsel references a

community supervision revocation issue without explaining how a community supervision



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revocation issue arises from a jury trial of three original offenses. This court is not satisfied

that appellant has received an active advocate.


       We will not require counsel to refile a properly written Anders brief. Instead, we

grant counsel’s motion to withdraw, abate the appeal, and remand the cause to the trial

court. Upon remand, the trial court should conduct a hearing within 30 days to determine

whether (1) appellant wishes to continue his appeal; (2) appellant remains indigent; and

(3) if indigent, appoint new counsel to represent appellant on appeal. The trial court shall

direct the newly appointed counsel, if any, to file appellant's brief within 30 days after his

or her appointment, and shall furnish the name, address and State Bar number of

appointed counsel to the Clerk of this Court immediately after the appointment is made.


       Furthermore, the trial court shall also cause to be developed 1) a supplemental

clerk's record containing appointment of counsel and any additional orders arising from

said hearing and 2) a reporter's record transcribing the evidence and arguments presented

at the aforementioned hearing. Additionally, the trial court shall cause the supplemental

records to be filed with the clerk of this court on or before March 12, 2007.


       It is so ordered.




                                            Per Curiam




Do not publish.

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