
No. 04-98-00811-CR
Henry VELASQUEZ,
Appellant
v.
The STATE Of Texas,
Appellee
From the 227th Judicial District Court, Bexar County, Texas
Trial Court No. 95-CR-6047
Honorable Pat Priest, Judge Presiding
ON MOTION TO WITHDRAW

Sitting:	Phil Hardberger, Chief Justice
		Catherine Stone, Justice
		Sarah B. Duncan, Justice
Delivered and Filed:  January 26, 2000 
	Relying upon Chandler v. State, 988 S.W.2d 827 (Tex. App.--Dallas 1999, motion granted)
Henry Velasquez's counsel moves to withdraw, arguing "[i]t is ... a certain denial of effective
assistance of appellate counsel to permit trial counsel to analyze and reject as frivolous a potential
appellate argument alleging ineffective assistance of himself." We disagree and therefore construe
counsel's motion as a motion to withdraw pursuant to Anders v. California, 386 U.S. 738 (1967).
Factual and Procedural Background
	After Henry Velasquez was charged with aggravated sexual assault of a child, the trial court
appointed counsel to represent him "until charges are dismissed, [he] is acquitted, appeals are
exhausted, or the attorney is relieved of his duties by the court or replaced by other counsel" pursuant
to article 26.049(a) of the Texas Code of Criminal Procedure. The jury found Velasquez guilty, and
the court sentenced him to ten years in the Texas Department of Criminal Justice - Institutional
Division. Velasquez appealed.
	On appeal, Velasquez's counsel has filed an Anders(1) brief and a motion to withdraw. In the
motion to withdraw, Velasquez's counsel asks this court to abate the appeal and remand the cause
to the trial court for the appointment of new counsel. Relying upon Chandler v. State, 988 S.W.2d
827 (Tex. App.--Dallas 1999, motion granted), Velasquez's counsel contends "[i]t is ... a certain
denial of effective assistance of appellate counsel to permit trial counsel to analyze and reject as
frivolous a potential appellate argument alleging ineffective assistance of himself." 
Discussion
	In Chandler, the Dallas Court of Appeals concluded that "given the bias and prejudice
appellate counsel may have in evaluating his own performance at trial, as well as the reality that
counsel who does not understand the law during trial may not recognize the same error on appeal,
it is not appropriate for appointed appellate counsel to file an Anders brief in a case in which counsel
also served as trial counsel"  Chandler, 988 S.W.2d at 828. Therefore, "[i]f appellate counsel, who
also served as trial counsel, reaches a point in the appeal where he or she believes the appeal is
frivolous and that an Anders brief is appropriate, then counsel should filed a motion to withdraw ...
explaining the conflict." Id. We respectfully disagree. Like the Texas Legislature, we presume trial
counsel is competent to act as appellate counsel. See Tex. Code Crim. Proc. Ann. 26.04 (appointed
counsel shall continue to represent defendant until appeals are exhausted unless otherwise relieved
by the court); see also Ward v. State, 740 S.W.2d 794 (Tex. Crim. App. 1987). Only if the record
establishes the contrary is a conflict created and the appointment of new appellate counsel required.
We will therefore construe counsel's motion to withdraw as a motion pursuant to Anders and dispose
of it accordingly.
							Sarah B. Duncan, Justice
Publish
1. Anders v. California, 386 U.S. 738 (1967); Stafford v. State, 813 S.W.2d 503 (Tex. Crim. App. 1991).

