Replacing Court Appointed Appellate Attorney In Texas
In Chandler v. State, 988 S.W.2d 827 (Tex. App.--Dallas 1999, motion granted), the Dallas Court of Appeals concluded that "given the bias and prejudice appellate counsel may have in evaluating his own performance at trial, as well as the reality that counsel who does not understand the law during trial may not recognize the same error on appeal, it is not appropriate for appointed appellate counsel to file an Anders brief in a case in which counsel also served as trial counsel" Chandler, 988 S.W.2d at 828.
Therefore, "if appellate counsel, who also served as trial counsel, reaches a point in the appeal where he or she believes the appeal is frivolous and that an Anders brief is appropriate, then counsel should filed a motion to withdraw ... explaining the conflict." Id.
Like the Texas Legislature, we presume trial counsel is competent to act as appellate counsel. See TEX. CODE CRIM. PROC. ANN. 26.04 (appointed counsel shall continue to represent defendant until appeals are exhausted unless otherwise relieved by the court); see also Ward v. State, 740 S.W.2d 794 (Tex. Crim. App. 1987).
Only if the record establishes the contrary is a conflict created and the appointment of new appellate counsel required.