      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 THOMAS J. 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. 2010). The trial court

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

Wiethorn appealed his conviction, and his counsel filed a brief in this Court in which she stated that

the appeal was frivolous and without merit. See Anders v. California, 386 U.S. 738 (1967).

Wiethorn filed a pro se brief in which he raised as a ground for appeal that the trial court erred by

refusing to instruct the jury that it could convict him of resisting arrest, which he contends was a

lesser included offense of assault on a public servant as it was charged in the indictment. See Tex.

Penal Code Ann. § 38.03 (West 2003) (resisting arrest); Tex. Crim Proc. Code Ann. art. 37.09 (West

2006) (lesser included offenses). We determined that Wiethorn had raised an arguable ground for

appeal, so we abated the appeal and instructed the trial court to appoint substitute counsel. See
Wiethorn v. State, No. 03-09-00036-CR, 2010 Tex. App. LEXIS 6930 (Tex. App.—Austin

Aug. 20, 2010, no pet.).

                Wiethorn’s substitute counsel has filed an Anders brief in which he analyzes

Wiethorn’s lesser-included-offense argument as some length and concludes that it is frivolous and

without merit. Because we have already determined that the argument potentially has merit, see id.

at *2, Wiethorn’s constitutional rights require that Wiethorn “be provided with counsel to properly

brief” the argument in a manner that supports his appeal. Garner v. State, 300 S.W.3d 763, 767

(Tex. Crim. App. 2009). See also Stafford v. State, 813 S.W.2d 503, 511 (Tex. Crim. App. 1991)

(“After an attorney files a proper Anders brief . . . , the Court of Appeals . . . must conduct its own

investigation of the record to discover if there are arguable grounds. If grounds are deemed arguable,

the Court of Appeals then must abate the appeal and remand the case to the trial court with orders

to appoint other counsel to present those . . . grounds) (emphasis added); Perryman v. State,

159 S.W.3d 778, 778-79 (Tex. App.—Waco 2005, no pet.) (after original appellate counsel filed

Anders brief, court identified arguable ground for appeal and ordered appointment of substitute

counsel; when substitute appellate counsel filed Anders brief instead of briefing ground identified

by court, court was required to order appointment of second substitute counsel). We may not address

the merits of Wiethorn’s argument until it has been briefed by new counsel. See Bledsoe v. State,

178 S.W.3d 824, 827 (Tex. Crim. App. 2005). Accordingly, we once again abate this appeal. We

instruct the trial court to appoint substitute counsel to brief the argument in support of Wiethorn’s

view that the trial court erred by refusing to charge the jury on the lesser included offense of resisting

arrest, along with any other issues that counsel deems meritorious. See Stafford, 813 S.W.2d at 511.



                                                    2
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 May 26, 2011. Substitute counsel’s brief will

be due thirty days after the date of appointment.



                                              _____________________________________________

                                              David Puryear, Justice

Before Justices Puryear, Pemberton and Goodwin

Abated

Filed: May 11, 2011

Do Not Publish




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