                                   NO. 07-02-0418-CR

                             IN THE COURT OF APPEALS

                       FOR THE SEVENTH DISTRICT OF TEXAS

                                      AT AMARILLO

                                         PANEL A

                                    AUGUST 28, 2003

                          ______________________________


                   NEDIEM MAHMOUD SAADEDDINE, APPELLANT

                                            V.

                          THE STATE OF TEXAS, APPELLEE


                        _________________________________

             FROM THE 163RD DISTRICT COURT OF ORANGE COUNTY;

              NO. B010142-R; HONORABLE DENNIS POWELL, JUDGE

                         _______________________________

Before JOHNSON, C.J., and REAVIS and CAMPBELL, JJ.


                                MEMORANDUM OPINION


       Appellant Nediem Mahmoud Saadeddine appeals from a conviction and sentence

in the 163rd District Court of Orange County, Texas (the trial court), for aggravated sexual

assault. His appellate attorney has filed a brief indicating that in counsel’s opinion, the

appeal is meritless. See Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d
493 (1967). In the introduction to the Anders brief, counsel recites that appellant was

convicted of aggravated sexual assault. In the Statement of the Nature and Result of the

Case however, counsel states that appellant was indicted for the offense of burglary of a

habitation. The clerk’s record shows that appellant was indicted for an incident on or

about September 20, 2000. Appellant’s brief recites that the burglary of a habitation

occurred on September 27, 1997. The brief recites that appellant pled guilty on April 11,

2001, while the reporter’s record shows that the guilty plea occurred on April 9, 2001.


          The substantive portion of appellant’s brief is one page. An additional page

contains counsel’s certification that he has diligently reviewed the record, formed the

opinion that the appeal is without merit, and that he has advised appellant of appellant’s

rights.


          Prior to concluding that an appeal is frivolous, appellate counsel must make a

diligent and thorough evaluation of the case. See McCoy v. Court of Appeals of

Wisconsin, Dist. 1, 486 U.S. 429, 438, 108 S.Ct. 1895, 100 L.Ed.2d 440 (1988). The

appellate lawyer must master the trial record, thoroughly research the law, and exercise

judgment in identifying the arguments that may be advanced on appeal. Id. If the attorney

determines there are no arguments to be made on behalf of the client, the attorney is

required to so advise the appellate court and seek leave to withdraw as counsel. See id.

at 438-439, 108 S.Ct. 1895.




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       The brief filed on behalf of appellant does not show that counsel has fulfilled his

duties to his client. At a minimum, the brief demonstrates that counsel either has not

exercised diligence in thoroughly researching and mastering the record, or has not

exercised diligence in formulating and exhibiting in the appellate brief that he has

researched and mastered the record.


       Counsel has set out his professional opinion that the appeal does not have merit.

He has not, however, filed a motion to withdraw.


       This appeal is abated and the cause is remanded to the trial court. Upon remand,

the judge of the trial court is directed to replace appellant’s current counsel with new

appellate counsel.


       The trial court is directed to: (1) conduct any necessary hearings; (2) if any hearings

are held, to make and file appropriate findings of fact, conclusions of law and

recommendations, and cause them to be included in a supplemental clerk’s record; (3)

enter any orders appropriate; (4) cause any hearing proceedings to be transcribed and

included in a reporter’s record; and (5) have a record of the proceedings made to the

extent any of the proceedings are not included in the supplemental clerk’s record or the

reporter’s record. In the absence of a request for extension of time from the trial court, the

supplemental clerk’s record, reporter’s record, and any additional proceeding records,

including any orders, findings, conclusions and recommendations, are to be sent so as to

be received by the clerk of this court not later than September 19, 2003.



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                      Per Curiam


Do not publish.




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