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
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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
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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
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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
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