      TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN


                                       NO. 03-09-00036-CR



                              Charles Randel Wiethorn, Appellant

                                                  v.

                                   The State of Texas, Appellee


  FROM THE DISTRICT COURT OF TOM GREEN COUNTY, 391ST JUDICIAL DISTRICT
        NO. D-08-0748-SB, HONORABLE TOM GOSSETT, JUDGE PRESIDING



                             MEMORANDUM OPINION


               A jury found appellant Charles Randel Wiethorn guilty of assault on a public servant,

a third degree felony. See Tex. Penal Code Ann. § 22.01(b) (West Supp. 2009). The trial court

assessed punishment, enhanced by two previous felony convictions, at 45 years’ imprisonment.

               Appellant’s court-appointed attorney has filed a motion to withdraw supported by a

brief in which she states that the appeal is frivolous and without merit. See Anders v. California,

386 U.S. 738, 744 (1967). Appellant received a copy of counsel’s brief and was advised of his right

to examine the appellate record and to file a pro se brief. Appellant filed a pro se brief in which he

raised as a ground for appeal that the trial court erred by refusing to charge the jury on resisting

arrest, which he claims is a lesser-included offense of the offense charged. See Tex. Penal Code

Ann. § 38.03 (West 2003). We conclude that appellant has raised an arguable ground for appeal.

Determining whether an offense is a lesser-included offense entails a comparison of the elements
as they are alleged in the indictment or information with the elements of the potential lesser-included

offense. Hall v. State, 225 S.W.3d 524, 535 (Tex. Crim. App. 2007); see also Ex Parte Watson,

306 S.W.3d 259, 271 (Tex. Crim. App. 2009). The elements and the facts alleged in the charging

instrument are used to find lesser-included offenses. Hall, 225 S.W.3d at 535. The elements of the

lesser offense do not have to be pleaded in the indictment charging the greater inclusive offense if

they can be deduced from the facts alleged in the indictment. Id.

               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 refusing to

charge the jury on the lesser-included offense of resisting arrest, 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 September 15, 2010. Substitute counsel’s brief

will be due thirty days after the date of appointment.



                                               _____________________________________________

                                               David Puryear, Justice

Before Justices Patterson, Puryear and Pemberton

Abated

Filed: August 20, 2010

Do Not Publish

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