Robert Lopez, III v. State

NO. 07-09-0062-CR IN THE COURT OF APPEALS FOR THE SEVENTH DISTRICT OF TEXAS AT AMARILLO PANEL A JUNE 24, 2009 ______________________________ ROBERT LOPEZ, III, APPELLANT V. THE STATE OF TEXAS, APPELLEE _________________________________ FROM THE 110TH DISTRICT COURT OF FLOYD COUNTY; NO. 4363; HONORABLE WILLIAM P. SMITH, JUDGE _______________________________ Before CAMPBELL and HANCOCK and PIRTLE, JJ. ORDER Appellant appeals his convictions for the offenses of aggravated robbery and burglary of a habitation. He has filed a letter requesting this Court appoint new counsel for his appeal after his appointed counsel has filed Anders brief and a motion to withdraw. We deny appellant's motion. Appellant seems to believe that his appointed counsel has already withdrawn from the appeal or that, by filing an Anders brief and motion to withdraw, that counsel is not representing appellant in his appeal. However, until appellant's appointed counsel is permitted to withdraw, he remains the attorney of record. Escobar v. State, 134 S.W.3d 338, 339 (Tex.App.–Amarillo 2003, no pet.). We will not rule on the motion to withdraw until we have independently examined the record. Nichols v. State, 954 S.W.2d 83, 86 (Tex.App.–San Antonio 1997, no pet.). Appellant is entitled to file a pro se response to counsel’s Anders brief and motion to withdraw. Any response is currently due on or before June 25, 2009. However, because an appellant is not entitled to hybrid representation, that is, both to be represented by counsel and appear pro se, the response to an Anders brief filed by appointed counsel is not a brief and need not satisfy the rules applicable to appellate briefs. Henry v. State, 948 S.W.2d 338, 340 (Tex.App.–Dallas 1997, no pet.); Wilson v. State, 955 S.W.2d 693, 696 (Tex.App.–Waco 1997, no pet.). The purpose of a pro se response to an Anders brief is not to present an argument on which the Court will decide the case, but to raise any points the indigent appellant chooses to bring to the attention of the court for it to determine whether the appeal is wholly frivolous or there are issues which are arguable on their merits. Henry, 948 S.W.2d at 341. If, after reviewing the record, the Anders brief submitted by appellant's counsel, and any response appellant may file, this Court determines the appeal has merit, we will remand it to the trial court for appointment of new counsel. See Stafford v. State, 813 S.W.2d 503, 511 (Tex.Crim.App. 1991). We deny appellant’s request for appointment of new counsel for appeal. Per Curiam Do not publish.