Opinion
No. 08-02-00129-CR.
May 1, 2003. DO NOT PUBLISH, Tex.R.App.P. 47.2(b).
Appeal from the 109th District Court of Winkler County, Texas.
Before BARAJAS, C.J., LARSEN, and CHEW, JJ.
MEMORANDUM OPINION ON ORDER ABATING APPEAL AND REMANDING FOR HEARING
This appeal arises from a deferred adjudication for engaging in organized criminal activity with the object offense of burglary. Appellant's retained counsel on appeal has filed a brief in which he has concluded that the appeal is wholly frivolous and without merit, attempting to invoke Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493, reh. denied, 388 U.S. 924, 87 S.Ct. 2094, 18 L.Ed.2d 1377 (1967). However, the constitutional protections of Anders are not applicable when a defendant has retained counsel. Craddock v. State, 38 S.W.3d 886, 887 (Tex.App.-Waco 2001, no pet.); Nguyen v. State, 11 S.W.3d 376, 379 (Tex.App.-Houston [14th Dist.] 2000, no pet.); Pena v. State, 932 S.W.2d 31, 32 (Tex.App.-El Paso 1995, no pet.); Oldham v. State, 894 S.W.2d 561, 562 (Tex.App.-Waco 1995, no pet.). Although the Anders procedure does not apply to retained counsel, the same ethical standards prohibiting frivolous appeals governs his actions before an appellate court. Pena, 932 S.W.2d at 32-33. Retained counsel has three alternative courses in a criminal case: (1) file a brief on the merits; (2) after advice to and consent of the client, withdraw the notice of appeal; or (3) move to withdraw from representation. Craddock, 38 S.W.3d at 887. The first option is no longer available here, where retained counsel has determined there are no arguable issues for appeal. Id. From the record before this Court, we surmise that counsel has taken no steps to accomplish the second or third option. In the current matter, time for filing appellant's brief expired without a motion for extension of time. On August 28, 2002, this Court ordered a hearing to determine whether Ybarra desired to prosecute his appeal, whether he had been deprived of effective assistance of counsel, and to make appropriate findings and recommendations. A hearing was held on September 24, 2002, after which the judge made four findings: Ybarra wished to prosecute his appeal; he is entitled to reasonable assistance of counsel; he did not receive proper assistance of counsel in connection with this appeal because of accident or mistake; and finally, retained counsel had agreed to prosecute the appeal. The trial court then recommended that Mr. Ybarra be permitted to file his brief. That recommendation was accepted by this Court. On April 11, 2003, this Court received a letter from Ybarra claiming that he has not been contacted by his counsel since the hearing, inquiring whether a brief had even been filed on his behalf, and stating he had not heard from his lawyer since the September 2002 hearing. Apparently, counsel has not informed his client of his intention to file a frivolous appeal brief. Accordingly, it is ordered that submission of this appeal is vacated and that the appeal is abated on the Court's own motion. The case is remanded to the trial court to conduct a hearing to determine the following issues, as well as any others the trial court deems necessary to determine the status of this appeal: (1) whether Ybarra has received effective assistance of counsel; (2) whether he is entitled to appointed counsel; (3) whether his retained counsel has abandoned the appeal; (4) whether counsel has failed to keep him appropriately informed; and (5) whether counsel intends to file his motion to withdraw. The trial court shall take such measures as may be necessary to assure effective assistance of counsel. The record of such hearing, including any orders and findings of the trial judge shall be certified and forwarded to this office on or before June 1, 2003.