                                    NO. 07-02-0022-CR

                               IN THE COURT OF APPEALS

                         FOR THE SEVENTH DISTRICT OF TEXAS

                                       AT AMARILLO

                                          PANEL B

                                  FEBRUARY 24, 2004
                            ______________________________


                             HORACE CHESTER, APPELLANT

                                             V.

                            THE STATE OF TEXAS, APPELLEE

                          _________________________________

           FROM THE CRIMINAL DISTRICT COURT OF JEFFERSON COUNTY;

                      NO. 82603; HONORABLE LARRY GIST, JUDGE
                          _______________________________

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


                                 ORDER ON ABATEMENT


       Appellant Horace Chester appeals from a conviction for possession of a controlled

substance. Appellant’s counsel has filed a motion to withdraw and an Anders1 brief

indicating that no arguable basis for appeal exists. We grant counsel’s motion to withdraw,

abate the appeal, and remand the cause to the trial court for appointment of new counsel.




       1
           Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967).
       Appellant was indicted for the offense of possession of a controlled substance,

enhanced. He pled not guilty and was convicted following a jury trial. In the punishment

stage of trial appellant pled true to the enhancement allegations. The jury assessed

punishment at the maximum sentence of 20 years confinement and a $10,000.00 fine.


       Appellant’s appointed counsel filed a motion to withdraw and an Anders brief in

support of the motion. Counsel has concluded that the appeal is frivolous and without

merit. Counsel sent a copy of the brief to appellant and informed appellant that, in

counsel’s view, the appeal is without merit. Appellant filed a pro se response. Among

numerous assertions by appellant in his response is an allegation that the prosecutor’s

final argument during the punishment stage of trial improperly directed the jury to consider

the manner in which parole law and good conduct time may be applied to appellant. In

replying to appellant’s response, the State acknowledges the impropriety of the

prosecutor’s argument and acknowledges that it was error for the trial court to overrule the

objection of appellant’s trial counsel to the argument. However, the State argues that the

error was harmless.


       We are required to make an independent examination of the record to determine

whether there are any arguable grounds which might support the appeal. Stafford v. State,

813 S.W.2d 503, 511 (Tex.Crim.App. 1991). Our review of the argument leads us to

conclude that it is at least arguable that the trial court’s ruling constitutes reversible error.2


       2
       This should not be viewed as a determination that the court's overruling of trial
counsel’s objection constitutes reversible error, nor should it be viewed as an implied
conclusion that the remainder of the issues raised by appellant in his pro se response lack

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       Having found an arguable ground for appeal, we may not accept appellate counsel’s

representation concerning the merits of the appeal, nor may we permit him to continue as

counsel. Stafford v. State, 813 S.W.2d 503, 511 (Tex.Crim.App. 1991). This court must

insure appellant’s right to counsel by permitting appellant’s present counsel to withdraw

and by abating and remanding the appeal for appointment of new counsel to represent

appellant on appeal. Id.


       Accordingly, we hereby grant counsel’s motion to withdraw, abate the appeal, and

remand the cause to the trial court. Upon remand, the trial court is directed to appoint new

counsel to represent appellant in this appeal and to direct the trial court clerk to file with

the appellate clerk a supplemental clerk’s record containing the order appointing new

appellate counsel and the name, address, and state bar number of newly appointed

counsel. The trial court is further directed to order the newly appointed counsel to file with

the appellate clerk (1) a notice of appearance setting out the matters required by Texas

Rule of Appellate Procedure 6.5(d) and (2) an appellant’s brief developing the

aforementioned arguable ground, as well as all other grounds that might support reversal

or modification of the judgment. See Stafford, 813 S.W.2d at 510.


       The trial court is directed to appoint new appellate counsel on or before March 26,

2004, in the absence of a request for extension of time. Appellate briefs from appellant



merit. See Wilson v. State, 40 S.W.3d 192, 200 (Tex.App.–Texarkana 2001, no pet.);
Wilson v. State, 976 S.W.2d 254, 257 n.4 (Tex.App.–Waco 1998, no pet.). We say only
that we have identified an arguable issue which merits further development by counsel on
appeal. TEX . R. APP . P. 47.1; Wilson, 40 S.W.3d at 200.

                                             -3-
and the State will be due in accordance with the provisions of Texas Rule of Appellate

Procedure 38, based on the date the supplemental clerk’s record referenced in this order

is filed with the appellate clerk.


       It is so ordered.


                                                Per Curiam




Do not publish.




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