                                 NO. 07-06-0160-CR

                            IN THE COURT OF APPEALS

                     FOR THE SEVENTH DISTRICT OF TEXAS

                                    AT AMARILLO

                                       PANEL A

                                NOVEMBER 16, 2006

                         ______________________________


                           CARL BURFORD, APPELLANT

                                          V.

                         THE STATE OF TEXAS, APPELLEE


                       _________________________________

            FROM THE 299TH DISTRICT COURT OF TRAVIS COUNTY;

            NO. D-1-DC-05-301203; HONORABLE JON WISSER, JUDGE

                        _______________________________

Before CAMPBELL and HANCOCK and PIRTLE, JJ.


                             ABATEMENT AND REMAND


      Following a plea of not guilty, Appellant Carl Burford was convicted by a jury of

possession of a controlled substance, enhanced, and sentenced to five years confinement.

On October 19, 2006, Appellant’s counsel filed an Anders brief in which he certified the

appeal is frivolous; however, said brief also contained what could be construed as an
arguable ground for appeal and a prayer for relief requesting the verdict be reversed and

the case be remanded for further proceedings. Furthermore, counsel did not file a motion

to withdraw from a proceeding where Appellant’s attorney has concluded the appeal is

frivolous, as mandated by Johnson v. State, 885 S.W.2d 641, 645 (Tex.App.-Waco 1994

pet. ref’d). By letter dated October 19, counsel was notified by this Court that the prayer

for relief requesting the verdict be reversed and the case be remanded for further

proceedings was inconsistent with counsel’s certification of no reversible error. Counsel

was directed by this Court to correct the defect on or before October 30, 2006. Counsel

was also notified by this Court that he was under a duty to request permission to withdraw

from representation in the event he believed the appeal to be frivolous. To date, counsel

has failed to either amend the Appellant’s brief or file a motion to withdraw. Consequently,

we now abate this appeal and remand the cause to the trial court for further proceedings.


       Upon remand, the trial court shall immediately determine the following:


       1.     whether Appellant desires to prosecute the appeal; and if so,
       2.     whether appointed counsel intended to file an Anders brief;
       3.     if Appellant’s counsel did intend to file an Anders brief; why he has
              failed to correct the inconsistent prayer and file a motion to withdraw;
       4.     if Appellant’s counsel did not intend to file an Anders brief, whether he
              has abandoned the appeal by failing to correct the inconsistent
              positions taken in Appellant’s brief;
       5.     if Appellant’s counsel has abandoned the appeal; whether new
              counsel should be appointed on appeal.




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       The trial court shall execute findings of fact and conclusions of law, and cause the

same to be included in a supplemental clerk's record to be filed with the Clerk of this Court

by December 29, 2006. A supplemental reporter’s record of any hearing shall also be

included in the appellate record if requested by appellate counsel.


       Should the trial court determine that (1) Appellant does desire to prosecute his

appeal, (2) Appellant’s counsel did not intend to file an Anders brief, (3) Appellant’s

counsel has abandoned Appellant’s appeal, and (4) new counsel should be appointed on

appeal, then the trial court shall appoint new counsel; in which event the trial court shall

provide this Court with the name, address, telephone number, and state bar number of the

newly-appointed counsel.


       It is so ordered.

                                                  Per Curiam


Do not publish.




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