
TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN



NO. 03-08-00570-CR


Donald Dean Gower, Appellant

v.

The State of Texas, Appellee




FROM THE DISTRICT COURT OF LAMPASAS COUNTY, 27TH JUDICIAL DISTRICT
NO. 8126, HONORABLE JOE CARROLL, JUDGE PRESIDING


M E M O R A N D U M   O P I N I O N

		Appellant Donald Gower appeals from his capital-murder conviction.  Gower's
court-appointed counsel filed a brief in which she states that the appeal is frivolous.  See Anders
v. California, 386 U.S. 738 (1967).  Our review of the record, however, discloses an error that is
not frivolous.
		On January 16, 2008, the trial court issued an order finding Gower incompetent and
ordering him committed to a mental health facility for restoration of competency.  See Tex. Code
Crim. Proc. Ann. art. 46B.073 (West Supp. 2009).  On February 25, 2008, the mental health facility
submitted a report to the trial court, opining that Gower had attained competency to stand trial and
requesting that he be returned to court.  See id. art. 46B.079 (West Supp. 2009).  Gower's case
proceeded to trial, and he was ultimately convicted and sentenced to life imprisonment.  The trial
court's record does not, however, contain any judicial finding of competency.  Such a finding is
required by statute.  See id. art. 46B.084(a) (West Supp. 2009) ("On the return of a defendant to the
court, the court shall make a determination with regard to the defendant's competency to stand
trial."); see also Schaffer v. State, 583 S.W.2d 627, 631 (Tex. Crim. App. 1979) (op. on reh'g)
(abating appeal for judicial determination of competency at time of trial). 
		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 proceeding to
trial without first making a judicial finding of competency, 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 April 19, 2010.  Substitute counsel's brief will be due
thirty days after the date of appointment.

__________________________________________
						Diane M. Henson, Justice
Before Chief Justice Jones, Justices Puryear and Henson
Abated
Filed:   March 24, 2010
Do Not Publish
