Full Opinion

TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN NO. 03-26-00200-CR Jaime Peter Espericueta, Appellant v. The State of Texas, Appellee FROM THE 483RD DISTRICT COURT OF HAYS COUNTY NO. CR-20-1800-A, THE HONORABLE ALICIA KEY, JUDGE PRESIDING ORDER AND MEMORANDUM OPINION PER CURIAM Appellant Jaime Peter Espericueta was convicted of continuous sexual abuse of a young child and sentenced to seventy-five years’ confinement. See Tex. Penal Code § 21.02. The trial court denied appellant’s first pretrial indigency application and request for appointed counsel and ordered him to employ retained counsel. However, around three months later, appellant filed a second indigency application, which the court granted, and appellant was appointed counsel who represented him at trial. After counsel withdrew following the trial, the trial court appointed appellate counsel for appellant “in the interest of justice.” The court granted appellant’s request for a free copy of the reporter’s record on appeal. See Tex. R. App. P. 20.2 (requiring trial court to provide free transcript to “an appellant who is unable to pay for the appellate record”). On May 27, 2026, appellant filed a motion to substitute his lead counsel, in which he stated that he had retained a law firm to represent him and moved this Court to designate an attorney with the retained firm as lead counsel in his appeal. We granted the motion on June 1, recognizing in our order that appellant’s request was “more in the nature of an addition” rather than a “replacement” and that no action by the trial court was therefore necessary. See Bonner v. State, 29 S.W.3d 360, 361 n.1 (Tex. App.—Waco 2000, order) (per curiam) (declaring that courts of appeals can allow additional attorney to appear without action by trial court). We directed that “[r]etained counsel will be entered onto our docket as appellant’s new lead counsel, and appointed counsel will remain on the docket as an attorney representing appellant in this appeal.” In addition, we noted that any attempt by appointed counsel to withdraw would have to be pursued in the trial court. To date, we have not received notice of such an attempt. Retained counsel has now filed a motion to withdraw that complies with Rule of Appellate Procedure 6.5. See Tex. R. App. P. 6.5 (setting out requirements for withdrawal of lead counsel). In his motion, retained counsel informed the Court that “[b]ased upon counsel’s review of the record, counsel does not believe that there are any non-frivolous points of error that can be raised on [appellant’s] behalf on appeal.” Both appointed and retained attorneys have an ethical obligation to refuse to pursue a frivolous appeal. See Torres v. State, 271 S.W.3d 872, 873 (Tex. App.—Amarillo 2008, no pet.); Pena v. State, 932 S.W.2d 31, 32 (Tex. App.—El Paso 1995, no pet.). Yet retained counsel correctly notes that “only appointed counsel is required to satisfy the appellate court that he or she has diligently investigated the possible grounds of appeal,” Pena, 932 S.W.2d at 33, and that retained counsel has no duty to file an Anders brief because “by securing retained counsel, the appellant has received all that Anders was designed to insure,” Torres, 271 S.W.3d at 873; see 2 Anders v. California, 386 U.S. 738, 744 (1967) (requiring that when appointed counsel, after “a conscientious examination,” finds appeal to be “wholly frivolous,” he must file “a brief referring to anything in the record that might arguably support the appeal”). Thus, when a retained attorney determines that an appeal would be frivolous, his only obligations are to inform us of his determination and to seek to withdraw in compliance with Rule 6.5. See Lopez v. State, 283 S.W.3d 479, 480–81 (Tex. App.—Texarkana 2009, no pet.). In such circumstances, we generally need address only whether retained counsel’s motion to withdraw complied with the rule. See id. This case, however, is complicated by the facts that the trial court found appellant to be indigent and appointed him appellate counsel; that the court has not made a subsequent finding that appellant’s financial circumstances have materially changed; that appointed counsel continues to represent appellant in this appeal; and that unlike retained counsel, appointed counsel has a constitutional duty to file an Anders brief if he finds the case to be wholly frivolous. See Anders, 386 U.S. at 744; Pena, 932 S.W.2d at 33; see also Tex. Code Crim. Proc. art. 26.04(p) (“A defendant who is determined by the court to be indigent is presumed to remain indigent for the remainder of the proceedings in the case unless a material change in the defendant’s financial circumstances occurs.”). Because there is reason to believe that appellant’s financial circumstances have materially changed, because the trial court alone must determine whether he remains indigent, and because his brief is now untimely, we abate this appeal and remand the cause to the trial court for a hearing under Rule of Appellate Procedure 38.8. See Tex. R. App. P. 38.8(b)(2) (requiring appellate court to order hearing when brief is not timely received); Foley v. State, 514 S.W.2d 449, 451 (Tex. Crim. App. 1974) (“This Court has consistently held that the trial court has a duty and 3 responsibility to make an inquiry into the case where trial officials are put on notice that there has been a change of financial status of an appellant during the appeal process.”); see also Logan v. State, 463 S.W.2d 740, 740–41 (Tex. Crim. App. 1971) (ordering hearing to ensure appellant had effective representation because neither retained counsel nor appointed counsel filed brief by deadline); Mediano v. State, No. 03-16-00211-CR, 2016 WL 6576873, at *1 (Tex. App.—Austin Nov. 4, 2016, order) (per curiam) (mem. op., not designated for publication) (remanding for Rule 38.8 hearing when this Court granted retained counsel’s motion to withdraw, and appellant then moved for appointment of counsel in trial court). At the hearing, which shall be transcribed and at which both appellant and appointed counsel shall be present, the trial court shall make findings as to whether appellant still desires to prosecute this appeal; whether appellant is indigent or whether his financial circumstances have materially changed; and, if he is indigent, whether appointed counsel has abandoned this appeal. If the trial court finds that appellant remains indigent and that appointed counsel has abandoned the appeal, the court shall make appropriate orders to ensure that appellant is adequately represented on appeal. See Mediano, 2016 WL 6576873, at *1. If the court finds that appellant is no longer indigent, it shall allow appointed counsel to withdraw in favor of retained counsel if it finds that there is good cause for doing so. See Tex. Code Crim. Proc. art. 26.04(j)(2) (providing that appointed counsel may end representation if “permitted or ordered by the court to withdraw as counsel for the defendant after a finding of good cause is entered on the record”); Foley, 514 S.W.2d at 451 (“[I]f the appellant were not indigent, then the rationale of Anders v. California would not apply, and there would be no error in allowing the court to withdraw court-appointed counsel’s appearance in favor of retained counsel”). Following the hearing, the trial court shall order that the appropriate supplemental clerk’s 4 record and supplemental reporter’s record be prepared and filed in this Court no later than September 25, 2026. See Mediano, 2016 WL 6576873, at *1. It is so ordered August 31, 2026. Before Justices Triana, Crump, and Ellis Abated and Remanded Filed: August 31, 2026 Do Not Publish 5