NO. 07-11-0029-CR NO. 07-11-0030-CR IN THE COURT OF APPEALS FOR THE SEVENTH DISTRICT OF TEXAS AT AMARILLO PANEL D JULY 20, 2011

HUDSON LEE PH ARRIES, Appellant v. THE STATE OF TEXAS, Appellee

__________________ _________ FROM THE 20TH DISTRICT COURT OF MILAM COUNTY; NOS. CR22,778 & CR22, 781; HONORABLE ED MAGRE, PRESIDING

Order of Abatement

Before QUINN, C.J., and CAMPBELL and PIRTLE, JJ. Hudson Lee Pharries (appell ant) appeals his convictions for aggravated sexual assault of a child and indecency with a child by contact. Appellant plead guilty to both indictments without an agreement as to punishment. His court-appointed counsel filed a brief pursuant to Anders v. California , 386 U.S. 738, 87 S. Ct. 1396, 18 L.Ed.2d 493 (1967), therein asserting that a review of th e record shows no reversible error. The appellate record in this cause, however, is mi ssing a portion of the reporter's record and2 clerk’s record. Specifically, the portion missi ng in the reporter’s record is the original guilty plea hearing held on Sept ember 13, 2010, and the clerk’ s record does not contain the report from Dr. Pugliese. The issue, therefore, is whether court-appointed counsel may file an Anders brief when the appellate record being reviewed is incomplete. For the reasons set forth below, we conclude he cannot.
The purpose of an Anders brief is to support counsel's motion to withdraw. Through it, counsel effectively illustrate s to the court 1) that he performed a conscientious examination of the record to discover potential error and 2) that the appeal is frivolous. Marsh v. State , 959 S.W.2d 224, 225 (Tex. App.–Dallas 1996, no pet.); Jeffery v. State , 903 S.W.2d 776, 779 (Tex. App.–Dalla s 1995, no pet.). Without a complete record, however, it cannot be said that counsel conscientiously searched for potential error and, as a result of that sear ch, legitimately conclu ded that the appeal was frivolous. See Mason v. State, 65 S.W.3d 120 (Tex. App.–Amarillo 2001, no pet.) (striking the Anders brief because the portion of the reco rd containing the voir dire was missing); see also Marsh v. State , 959 S.W.2d at 225-26 (striking the Anders brief and remanding for the appointment of new counsel because the record was incomplete). Simply put, one cannot say that there is no arguable merit to an appeal based upon the review of an incomplete record.
In the case at bar, appella te counsel represented in his Anders brief that the psychological evaluation was not part of the record even though the State requested that the trial court take judicial notice of sa me. Because the original guilty plea hearing conducted on September 13, 2010, was not transcribed and is missing from the appellate record, and appellant’s psychological evaluation is missing as well, we strike3 the Anders brief filed by appellant's counsel. We fu rther order the official court reporter for the 20th Judicial District Court of Milam County to 1) transcribe all hearings and other proceedings held in Cause Nos. CR 22,778 and CR22,781, st yled The State of Texas v. Hudson Lee Pharries that have not previously been transcribed, 2) include the transcription in a supplemental reporter's record, and 3) file the supplemental reporter's record with the clerk of this court on or bef ore August 19, 2011. Furthermore, we order the district clerk for Milam County to include in a supplemental clerk’s record any and all psychological evaluations (including any perf ormed by Dr. Pugliese of appellant) of which the trial court took judici al notice and file sa me with the clerk of this court on or before August 19, 2011. Within thirty da ys of the day on which the supplemental records are filed with the clerk of this court, counsel for appella nt is ordered to 1) review the entire appellate record to determine t he presence of arguable grounds of error and 2) file with the clerk of this court a brie f addressing potential gr ounds of error or an Ander s brief and motion to withdraw conforming with the dictates of the law, as counsel may choose based upon the exercise of his professional judgment. Lastly, we deny appellate counsel's pending motion to withdraw, at this time.

It is so ordered.

Per Curiam
Do not publish.