                                  COURT OF APPEALS FOR THE
                             FIRST DISTRICT OF TEXAS AT HOUSTON

                               ORDER OF ABATEMENT AND REMAND

Appellate case name:       Jose Fransisco Mendoza-Navarro v. The State of Texas

Appellate case number:     01-18-00706-CR

Trial court case number: 1542074

Trial court:               176th District Court of Harris County

         This appeal has been pending since the notice of appeal was filed in July of 2018.
Appellant’s brief was originally due in November 2018, but when retained counsel failed to file a
brief, this Court abated and ordered the trial court to hold a hearing to determine why no brief had
been filed. More than six months later, the trial court filed findings of fact and conclusions of law
indicating that retained counsel had abandoned appellant, appellant was indigent, and appointing
counsel, David L. Garza, to represent appellant. A number of extensions were granted. In
September 2019, Garza filed a motion to withdraw and the accompanying brief required by Anders
v. California, 386 U.S. 738 (1967). The State filed a waiver of response on November 26, 2019.
After receiving a request to access the record, the Court issued an order directing the trial court
clerk to provide appellant with access to the record.
         Purporting to act as appellant’s retained counsel, Peyton Z. Peeples III, tendered on January
24, 2020, “Appellant’s Response to Anders Brief.” Because two attorneys had made appearances
claiming to represent appellant, this Court issued an order requiring Peeples either to file a motion
to substitute or to present the Court with authority permitting a retained attorney to file a response
to an Anders brief. Peeples filed a motion to substitute on February 3, 2020; however, the motion
states that Peeples wishes to be substituted only to respond to the Anders brief.
       The provision for filing an Anders response is to permit the indigent appellant to point out
“any reason why he thinks there are non-frivolous issues to be raised on his behalf, notwithstanding
his appointed counsel’s evaluation of the record.” Kelly v. State, 436 S.W.3d 313, 315 (Tex. Crim.
App. 2014). The Anders procedure does not contemplate retained counsel filing the response to
appointed counsel’s brief.
       The trial court is responsible for appointing counsel to represent indigent defendants, see
TEX. CODE CRIM. PROC. ANN. art. 1.05(d), and possesses the authority to relieve or replace
appointed counsel on a finding of good cause. See id. art. 26.04(j)(2). Despite filing a motion to
withdraw, Garza remains appellant’s counsel on appeal “until charges are dismissed, the defendant
is acquitted, appeals are exhausted, or [he] is relieved of his duties by the court or replaced by
other counsel after a finding of good cause is entered on the record.” Id.; see Alvarado v. State,
562 S.W.3d 450, 450 (Tex. App.—Houston [1st Dist.] 2014, order).
        In light of Garza’s motion to withdraw and Peeples’ motion to be substituted, even if it is
only for the purpose of filing a response to the Anders brief, we abate the appeal and remand the
cause to the trial court for further proceedings to determine the following:
              1. Whether appellant still desires to prosecute his appeal;
              2. Whether Peeples has been retained to represent appellant in this appeal;
              3. Whether Garza desires to be relieved of his duties as appellate counsel in light of
                 Peeples’ representation, and if so, good cause exists to relieve Garza of his duties;
              4. If Peeples is to be substituted for Garza, whether appellant’s consent to substitute
                 was properly obtained;
              5. If Peeples is to be substituted, whether Peeples understands that the Anders brief
                 filed by Garza will no longer be considered and Peeples agrees to appear as
                 appellant’s counsel and file an appellant’s brief not pursuant to Anders v.
                 California; and
              6. Any additional issues the trial court finds material to ensure appellant receives
                 effective assistance of counsel.

       If the trial court determines that Peeples has been retained to represent appellant for
purposes of filing an appellant’s brief, that appellant properly consented to the substitution of
counsel, and that Garza wishes to withdraw, then the trial court may permit Garza to withdraw.
        The trial court shall prepare findings of fact and conclusions of law, and shall cause the
findings and conclusions, and any orders the trial court signs, to be included in a supplemental
clerk’s record. If the trial court conducts a hearing of this matter, the hearing shall be recorded and
a hearing record prepared and filed in this Court. The trial court shall see that the supplemental
clerk’s record and hearing record, if any, is filed in this Court within twenty days from the date
of this order.
        If the trial court authorizes the withdrawal of Garza and substitution of Peeples, appellant’s
appellate brief shall be due within thirty days of the date this appeal is reinstated on the active
docket.
       It is so ORDERED.

Judge’s signature: ___/s/ Peter Kelly________
                    Acting individually  Acting for the Court


Date: ___February 11, 2020___
