### T E X A S C O U R T O F A P P E A L S , T H I R D D I S T R I C T , A T A U S T I N

NO. 03-09-00036- CR
Charles Randel Wiethorn, Appellan t

v. The State of Texas, App ellee

F ROM TH E DISTRI CT COURT O F TO M GREEN CO UNTY, 391 ST JUDICI AL DISTRICT NO. D-0 8-0 748- SB , H ONO RAB LE TH OM AS J. GO SSETT, JUDGE P RESIDING

M E M O R A N D U M O P I N I O N

A jury found appellant Charles Randel Wiethorn g uilty of assault on a public serva nt,

a t hird deg ree felony

. See Tex. Penal Code Ann. § 22.01(b) (West Supp. 2010). The t ri al co u rt assessed punishment, enhanc ed by two previous felony convictions, at 45 y ear s’ imprisonment. Wiethorn appea led his conviction, and his counsel filed a brief in this Court in which she stated that the ap p eal was frivolous and without merit. See Anders v. Calif ornia , 386 U.S. 738 (1967). Wiethorn filed a pro se brief in which he raised as a ground for appeal t hat t he trial court erre d by ref using to instruct the jury that it could convict him of resisting arr est, which he contends was a lesser included offe nse of assault on a public serva nt as it was char g ed in the indictment. See Tex. Penal Code Ann. § 38.03 (West 2003) (re sisting arr est); Tex. Crim Proc. Code Ann. art. 37.09 (West 2006) (lesse r included of

fense s). We de termined that Wiethorn ha d raised an arg uable g round for appea l, so we abate d the appea l and instructed the trial court to appoint substitut e counsel. SeeW

iethorn v. State , No. 03-09-00036- CR, 2010 Tex. App

. L E XI S 6930 (Tex. App.—Austin Aug . 20, 2010, no pet.).

Wiethorn’s substi t u t e counsel has filed an Anders brief in which he analy zes Wiethorn’s lesser- included-of fense arg ument as some leng th and conclude s that it is frivolous and without merit. Be cause we have alre ady deter mined that the arg ument potentially has merit, see id

. at *2, Wiethorn’s constitutional rig hts require that Wiethorn “be provided with counsel to proper ly brief” the ar gu m en t i n a manner that supports his appea l. Garner v. State , 300 S.W .3d 763, 767 (Tex. Crim. App. 2009). See also Stafford v. State , 813 S.W .2d 503, 511 (Tex. Crim. App. 1991) (“A fter an attorney files a pr oper Anders brief . . . , the Court of Appea ls .

. . must c onduct its own investiga tion of the rec ord to discover if there are arg uable g rounds. I f g rounds are deeme d arg uable, the Court of Appe als then must abate the appea l and re mand the ca se to the trial cour t with orders to appoint other counsel to present those

. . . g r o u nds ) (empha sis added) ; Perrym an v. State , 1 5 9 S.W .3d 778, 778-79 (Tex. App.—Waco 2005, no pet.) (af ter orig inal appellate counsel filed Anders brief, court identified arg uable g round fo r appeal and order ed appointment of substitut e counsel; whe n substitut e appe llate counse l filed Anders brief instea d of briefing g round identified by court, court was require d to order appointment of second substitut e counsel). We may not addre ss the merits of Wiethorn’s arg ument until it has been briefe d by new c ounsel. See B ledsoe v . State , 178 S.W .3d 824, 827 (Tex. Crim. App. 2005). Acc ording ly , we once ag ain abate this a ppeal. We instruct the trial cour

t to appoint substi tute counsel to br ief the arg ument in support of Wiethorn’s view that the trial court err ed by ref using to char g e the jury on the lesser included offe nse of resisting

arr est, along with any other issues that counsel deems meritorious. See Stafford , 813 S.W .2d at 511.

2Present counsel’s motion to withdraw is g rante d. See id

. A copy of the order appointing substitut e

counsel shall be forwa

rded to this Court no later than May 26, 2011. Substi tute counsel’s brief will be due thirty

day s after

the date of

appointment.

_ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ David Pury ear , J ustice Be fore J ustices Pury ear , Pemberton and G oodwin Abated Filed: May

11, 2011 Do Not Publish

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