NO. 07-06-0160-CR IN THE COUR

T OF APPEALS FOR THE SEVEN TH DISTRICT OF TEXAS

AT AMARILLO PANEL A NOVEMBER 16, 2006

______________________________ CARL BURFORD, APPELLANT

V. THE STATE OF TEXAS, A PPELLEE

_________________________________ FROM THE 2 99TH DI STRICT COURT OF T RAVIS COU NTY; NO. D-1-D C-05-301203; H ONORABLE JON WISSER, JUDGE

_______________________________ Before CAMPBELL and HANCOCK and PIRTLE, JJ. ABA TEMENT AND REMAND Followi ng a ple a ofnot gu ilty, A ppe llan t Carl Burf ord wa s con victe d by a juryof possession of a controlled substance , enhanced, and sen tenced to five years con finement. On October 19, 2006, Appe llant’s counsel f iled an Ande rs brief in w hich he certi fied the appeal is frivo lous; howev er, said bri ef also contained w ha t co uld be construe d as an2

arguable ground for appeal and a prayer for relief req uesting theverdict be revers ed and the case be remanded for further proceedin gs. Furthermore, counsel did not file a motion to withdraw

from a proceeding where A pp ellant’s attorney has concluded the appeal is frivolous, as ma nda ted b y Johnson v. State, 885 S.W.2d 641, 645 (Tex.App.-Waco 1994 pet. ref’d). By

letter dated O ctober 19, couns el wasnotified by t his Court t hat the praye r for relief requesting the verdict be re verse d and the case be r emanded for further proceedingswas inconsistent w ith counsel’ s certificati on of no revers ible error . Counsel was directed by

this Court

to correct the defect on or before October 30, 2006. Couns el was also notified by this Court that he was under a duty to request permission to withdraw from representati on in the even t he believed t he appeal to be friv olous. To date, counsel has failed to either

amend the Appellant’ s brief or file a moti on to withd raw. Co nseq uen tly, we now abate this appeal and remand th e cause to the trial court for f urther proceedings. Upon remand, the trial court s hall immediatel y determine the followin g: 1. whether Appel lant desiresto prosecute t he appeal; and if so, 2. whether appoi nted counsel intended to file an Anders bri ef; 3. if Appellant’s counsel did i ntend to file an Anders bri ef; why he has failed to correct the inco nsis tent praye r and file a mot ion t o with draw; 4. if Appellant’s counsel did not intend to file an Andersbrief, wheth er he has abandoned the ap peal by failing to correct the inco nsiste nt posi tion s ta ken i n App ell ant’ s br ief; 5. if Appellant’s counsel has abando ned t he appeal; whe ther new counsel should be appo inted on appeal.3

The trial cour t sha ll exec ute f indi ngs offac t and conc lusio ns oflaw, and cause the same to be included in a supplemental clerk's record to be filed with the Clerk of this Court by December 29, 2006. A supplemental r eporter’s r

ecord of any

hear ing shall also be included in th e appellate record if requested by appell ate counsel. Should the trial court determine t hat (1) Appell ant does desireto p rosecut e his appeal, (2) Appell ant’s counsel did notintend to file an Andersbrief, (3 ) Appellant ’s counsel has abandoned Appell ant’s appeal, and (4) new counsel should be appointed on appeal, then the trial court shall appoint new counsel; in which event the trial court shall providethis Court

with the name, address, tel ephone number, and state bar number of the newly- appointed counsel. It is so or

dered. Per Curiam Do not publish

.