      TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN


                                       NO. 03-08-00570-CR



                                 Donald Dean Gower, Appellant

                                                 v.

                                   The State of Texas, Appellee


   FROM THE DISTRICT COURT OF LAMPASAS COUNTY, 27TH JUDICIAL DISTRICT
            NO. 8126, HONORABLE JOE CARROLL, JUDGE PRESIDING



                             MEMORANDUM OPINION


                 Appellant Donald Gower appeals from his capital-murder conviction. Gower’s

court-appointed counsel filed a brief in which she states that the appeal is frivolous. See Anders

v. California, 386 U.S. 738 (1967). Our review of the record, however, discloses an error that is

not frivolous.

                 On January 16, 2008, the trial court issued an order finding Gower incompetent and

ordering him committed to a mental health facility for restoration of competency. See Tex. Code

Crim. Proc. Ann. art. 46B.073 (West Supp. 2009). On February 25, 2008, the mental health facility

submitted a report to the trial court, opining that Gower had attained competency to stand trial and

requesting that he be returned to court. See id. art. 46B.079 (West Supp. 2009). Gower’s case

proceeded to trial, and he was ultimately convicted and sentenced to life imprisonment. The trial

court’s record does not, however, contain any judicial finding of competency. Such a finding is
required by statute. See id. art. 46B.084(a) (West Supp. 2009) (“On the return of a defendant to the

court, the court shall make a determination with regard to the defendant’s competency to stand

trial.”); see also Schaffer v. State, 583 S.W.2d 627, 631 (Tex. Crim. App. 1979) (op. on reh’g)

(abating appeal for judicial determination of competency at time of trial).

               Because an Anders brief has been filed, we may not address the merits of any arguable

ground for appeal until the issue has been briefed by new counsel. See Bledsoe v. State, 178 S.W.3d

824, 827 (Tex. Crim. App. 2005). Accordingly, this appeal is abated. The trial court is instructed

to appoint substitute counsel to file a brief addressing whether the trial court erred in proceeding to

trial without first making a judicial finding of competency, along with any other issue that counsel

deems meritorious. See Stafford v. State, 813 S.W.2d 503, 511 (Tex. Crim. App. 1991). Present

counsel’s motion to withdraw is granted. See id. A copy of the order appointing substitute counsel

shall be forwarded to this Court no later than April 19, 2010. Substitute counsel’s brief will be due

thirty days after the date of appointment.



                                               __________________________________________

                                               Diane M. Henson, Justice

Before Chief Justice Jones, Justices Puryear and Henson

Abated

Filed: March 24, 2010

Do Not Publish




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