Ybarra, Richard v. State ( 2003 )

Form: Dismiss TRAP 42.2 Appellant's Motion

COURT OF APPEALS

EIGHTH DISTRICT OF TEXAS

EL PASO, TEXAS

RICHARD YBARRA, Appellant, v. THE STATE OF TEXAS, Appellee.

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No. 08-02-00129-CR Appeal from the 109th District Court of Winkler County, Texas (TC# 3812)

MEMORANDUM OPINION FOLLOWING ABATEMENT

Appellant's retained counsel on appeal, originally filed a brief in which he 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.). This, among other things, led to abatement of the appeal in this Court, and a hearing in the court below determining that Ybarra has not received effective assistance of counsel on appeal. The trial court also found that counsel had kept Ybarra properly informed of the proceedings.

Justin Low, retained counsel, has been allowed to withdraw by the trial court. We therefore deny as moot his motion to withdraw filed in this Court. The trial court at the same time appointed Alvaro Martinez to represent Ybarra on this appeal. We therefore reinstate Ybarra's appeal. We also reinstate the briefing schedule, with appellant's brief now due July 21, 2003.

SUSAN LARSEN, Justice

June 19, 2003

Before Panel No. 1

Larsen, McClure, and Chew, JJ.

(Do Not Publish)