                                   NO. 07-08-0175-CR

                             IN THE COURT OF APPEALS

                      FOR THE SEVENTH DISTRICT OF TEXAS

                                     AT AMARILLO

                                        PANEL D

                                  APRIL 15, 2009
                         ______________________________


                             EDWIN ANDREW DEGRAFF,

                                                               Appellant

                                            v.

                                THE STATE OF TEXAS,

                                                     Appellee
                       _________________________________

               FROM THE 64TH DISTRICT COURT OF HALE COUNTY;

          NO. B16020-0505; HON. ROBERT W. KINKAID, JR., PRESIDING
                     _______________________________

           Order of Abatement and Remand for Appointment of Counsel

                        ________________________________

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

       After a jury trial, Edwin Andrew DeGraff (appellant) was convicted of aggravated

sexual assault of a child. Punishment was assessed by the jury at fifty years in the Texas

Department of Criminal Justice Institutional Division. Appellant timely filed his notice of

appeal. Thereafter, his appointed counsel filed a motion to withdraw, together with an
Anders1 brief, wherein he certified that, after diligently searching the record, he found the

appeal without merit. Along with his brief, he also filed a copy of a letter he sent to

appellant informing him of his conclusion and of appellant’s right to appeal pro se. This

court notified appellant of his right to file his own brief or response, and appellant did so.

       In an Anders situation, a criminal defense attorney must zealously represent the

interests of his client on appeal. In re Schulman, 252 S.W.3d 403, 406 (Tex. Crim. App.

2008). If the appointed attorney finds the "case to be wholly frivolous, after a conscientious

examination of it, he should so advise the court and request permission to withdraw." Id.

The brief filed in an Anders situation is “an assurance to the appellate court that the

attorney has indeed made a thorough and conscientious examination of the record, has

provided the appellate court with the appropriate facts of the case and its procedural

history, and has pointed out any potentially plausible points of error.” Id.

       Despite counsel’s efforts and disclosures, we cannot simply accept them and also

conclude that the appeal is baseless. Instead, we too must peruse the record to determine

if matter exists that merits attention. Stafford v. State, 813 S.W.2d 503, 511 (Tex. Crim.

App. 1991). We have done that here and conclude that such matters do exist.

       Indeed, in analyzing the record as part of his Anders obligation, appellate counsel

did not mention various circumstances of interest. They include the three mistrials granted

by the trial court, the denial of appellant’s motion to transfer venue (filed after the third

mistrial) because he allegedly could not receive a fair trial, the denial of his motion to

suppress that placed into question the voluntariness of appellant’s statement, or the



       1
           See Anders v. California, 386 U.S. 738, 744-45, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967).

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difference between the accusations in the indictments and those in the jury charge

involving the manner and means of the assaults. And, while we make no comment upon

the ultimate merit of appellant’s appeal, we find that further attention to it is needed.

       Therefore, appellate counsel’s representation about the appeal being meritless is

rejected at this time. Instead, we abate the matter and remand the cause to the 64th

District Court of Hale County, Texas. See Stafford v. State, 813 S.W.2d at 511. Upon

remand, the trial court is ordered to appoint a new attorney to represent appellant in his

appeal. Next, the trial court shall cause the name, address, and state bar number of the

newly appointed counsel to be included in a supplemental transcript. That transcript shall

be filed by the trial court with the clerk of this court on or before April 30, 2009. Finally,

because the opinion expressed by appellant’s current attorney could be viewed as creating

a conflict of interest, we grant his motion to withdraw.

       It is so ordered.

                                                  Per Curiam



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