
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 242
ND
 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 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 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.  

