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Michael ALLISON, Appellant v. The STATE of Texas, Appellee
This order represents a significant change in the recognized duties of appointed counsel in an appeal in which appointed counsel has identified only non-reversible error. To comply with the Constitutional protections underpinning the United States Supreme Court's decision in Anders v. California, appointed counsel must argue an issue that raises a non-frivolous issue or, pursuant to Anders, file a motion to withdraw and a brief in support of the motion to withdraw. See generally Anders v. California, 386 U.S. 738, 87 S. Ct. 1396, 18 L. Ed.2d 493 (1967). The non-frivolous issue must be an issue that would impact the judgement of conviction or the punishment and not merely a non-reversible issue, such as court costs or recitations in the judgment, which can be corrected within the Anders context.
Appellant was charged by indictment with eight counts of tampering with oil and gas wells under section 85.389 of the Texas Natural Resources Code. See Tex. Nat. Res. Code Ann. § 85.389. He was convicted on all eight counts. A separate judgment was rendered on each count.
Counsel for appellant has filed a brief on the merits that does not argue any reversible error in the judgments. Rather, in two issues, counsel contends that there is no statutory authority to impose a $30 “SHERIFF'S BAILIFF FEE” and that the judgments contain several clerical errors regarding when the sentence was imposed and when the sentence commenced, the notations of the sentencing range for the charged offenses, and the recitation of the entire statute for which the appellant was convicted. It is because counsel has chosen to raise the issues in an ordinary brief on the merits, rather than in an Anders brief, that is the impetus for this order.
Counsel has a duty to zealously represent the interests of his client on appeal. See Anders, 386 U.S. at 744, 87 S. Ct. at 1400; see also In re Schulman, 252 S.W.3d 403, 406 (Tex. Crim. App. 2008); High v. State, 573 S.W.2d 807, 811 (Tex. Crim. App. [Panel Op.] 1978). However, “if counsel finds his case to be wholly frivolous, after a conscientious examination of it, he should so advise the court and request permission to withdraw.” Anders, 386 U.S. at 744, 87 S. Ct. at 1400; see Wilson v. State, 40 S.W.3d 192, 196 (Tex. App.— Texarkana 2001, order) (“Under Anders and its progeny, if an appointed counsel concludes that his client's appeal is without merit, he must (1) so inform the court, (2) seek permission to withdraw, and (3) file a brief referring to anything in the record that might arguably support the appeal.” (internal quotations and citations omitted)).
Anders requires counsel to provide a “brief referring to anything in the record that might arguably support the appeal” with his request to withdraw. Anders, 386 U.S. at 744, 87 S. Ct. at 1400; see In re Schulman, 252 S.W.3d at 404 (“An Anders brief may not be filed without a motion to withdraw, as the sole purpose of an Anders brief is to explain and support the motion to withdraw.”). This brief in support of the motion to withdraw should present a professional evaluation of the record, including references to the record and citations to legal authorities. See Anders, 386 U.S. at 744, 87 S. Ct. at 1400; see also High, 573 S.W.2d at 812 (“This brief does not meet Anders' requirements. It does not refer us to anything in this cold record which might arguably support the appeal; it does not discuss any of the evidence adduced at trial; it does not supply us with ready references to the record; nor does it supply us with any citation of legal authorities. The brief could not have been of any assistance to the trial court and, certainly, is of no assistance to this court.”).
Since Anders, High, and Wilson were decided, courts have clarified these duties and added other duties to what appellate counsel must do before being allowed to withdraw. In Kelly v. State, 436 S.W.3d 313 (Tex. Crim. App. 2014), the Court of Criminal Appeals articulated that these duties include: (1) writing a letter to notify the appellant of the motion to withdraw and the accompanying Anders brief, as well as providing the appellant with a copy of each; (2) informing the appellant of his right to file a pro se response and of his right to review the record preparatory to filing that response; (3) informing the appellant of his pro se right to seek discretionary review with the Court of Criminal Appeals should the court of appeals declare the appeal to be frivolous; and (4) taking concrete measures to initiate and facilitate the process of actuating the appellant's right to review the appellate record, if that is what the appellant wishes. Id. at 319
Counsel's motion to withdraw and brief in support of the motion to withdraw must be furnished to the appellant, and the appellant must be afforded time to raise any points that he chooses. Anders, 386 U.S. at 744, 87 S. Ct. at 1400; see Kelly, 436 S.W.3d at 319. It is only after the appellant is afforded the extra due-process safeguard afforded by the opportunity to present a pro se response that the appellate court conducts an independent review of the record, including counsel's Anders brief and any pro se response, to determine if the appeal is frivolous. Anders, 386 U.S. at 744, 87 S. Ct. at 1400. If the appeal is frivolous, the reviewing court “may grant counsel's request to withdraw and dismiss the appeal insofar as federal requirements are concerned, or proceed to a decision on the merits, if state law so requires.” Id. “On the other hand, if it finds any of the legal points arguable on their merits (and therefore not frivolous) it must, prior to decision, afford the indigent the assistance of counsel to argue the appeal.” Id.
It is important to understand what is meant by the term “frivolous” within the context of Anders. Employing the Anders procedure, Texas courts have regularly determined that an appeal is frivolous if it presents no reversible error, meaning there is nothing in the record that could arguably support the reversal, in whole or in part, of an appellant's conviction or punishment. See Bledsoe v. State, 178 S.W.3d 824, 827-28 (Tex. Crim. App. 2005) (“When faced with an Anders brief and if a later pro se brief is filed, the court of appeals has two choices. It may determine that the appeal is wholly frivolous and issue an opinion explaining that it has reviewed the record and finds no reversible error. Or, it may determine that arguable grounds for appeal exist and remand the cause to the trial court so that new counsel may be appointed to brief the issues.”(internal citations omitted)); see also Salazar v. State, No. 13-16-00630-CR, 2018 WL 5668521, at *1, 2018 Tex. App. LEXIS 8923, at **2-3 (Tex. App.—Corpus Christi Nov. 1, 2018, pet. ref'd) (mem. op., not designated for publication) (“Upon receiving an Anders brief, we must conduct a full examination of all the proceedings to determine whether the case is wholly frivolous. We may determine the appeal is wholly frivolous and issue an opinion after reviewing the record and finding no reversible error.” (internal citations omitted)); Smith v. State, No. 03-17-00799-CR, 2018 WL 2107631, at *1, 2018 Tex. App. LEXIS 3191, at *2 (Tex. App.—Austin May 8, 2018, no pet.) (mem. op., not designated for publication) (“We have conducted an independent review of the record—including the record of the revocation proceedings and appellate counsel's brief—and find no reversible error. We agree with counsel that the record presents no arguably meritorious grounds for review and the appeal is frivolous.”); Turcios v. State, No. 01-10-00747-CR, 2012 WL 3228692, at *2, 2012 Tex. App. LEXIS 6545, at **3-4 (Tex. App.—Houston [1st Dist.] Aug. 9, 2012, no pet.) (mem. op., not designated for publication) (“We have independently reviewed the entire record, and we conclude that no reversible error exists in the record, that there are no arguable grounds for review, and that therefore the appeal is frivolous.”). This is the substance of what has been presented in this appeal, but it lacks the form and substance, and therefore the protections and benefits, of the Anders procedures.
As stated above, counsel's brief complains only about a fee imposed and several clerical errors in the trial court's judgments. Counsel's brief presents no reversible error for appellate review because the issues asserted, if meritorious, could not result in the reversal, in whole or in part, of appellant's convictions or punishments. By choosing to raise these issues as appellant's sole complaints on appeal, counsel has prevented this Court from addressing any issue relating to the merits of appellant's conviction and punishment and has procedurally blocked appellant's right to appellate review on the merits of his case by foreclosing this Court's ability to reach a meritorious issue, if any exist. See State v. Bailey, 201 S.W.3d 739, 744 (Tex. Crim. App. 2006) (holding that an appellate court may not “reach out and reverse the trial court on an issue that was not raised” in a brief on appeal); see also Hearne v. State, 415 S.W.3d 365, 369 (Tex. App.—Houston [1st Dist.] 2013, no pet.) (Keyes, J., concurring).
As emphasized by Justice Keyes in her concurring opinion in Hearne, “counsel's failure to raise any issues addressing the merits of the underlying conviction without following the protections of the Anders procedure deprives [appellant] of important constitutional rights.” 415 S.W.3d at 369-70 (citing Anders, 386 U.S. at 742-44, 87 S. Ct at 1399-1400 (holding that summary proceedings concluding that appellant had been accorded were fair and impartial “cannot be an adequate substitute for the right to full appellate review available to all defendants” and stating, “The constitutional requirement of substantial equality and fair process can only be attained where counsel acts in the role of an active advocate on behalf of his client․”)). In other words, counsel's decision to raise non-reversible error outside the context of Anders in this case deprives appellant of his right to be heard by the filing of a pro se response raising “any points that he chooses,” and it deprives this Court the opportunity to conduct an independent review of the record. Anders, 386 U.S. at 744, 87 S. Ct. at 1400; see Hearne, 415 S.W.3d at 370.
To protect the constitutional rights of appellant, we strike counsel's brief and order counsel to file a brief that either raises an issue or issues addressing the merits of appellant's convictions or punishments or to file a motion to withdraw and brief in support of the motion to withdraw which complies with the dictates of Anders and its progeny.
This does not mean that counsel can ignore the non-reversible errors in an Anders brief. This Court and many of the other intermediate appellate courts have held that, within the context of Anders, appellate courts have the authority to reform the judgment, and affirm as modified, in cases where non-reversible error is alleged. See Ferguson v. State, 435 S.W.3d 291, 293-94 (Tex. App.—Waco 2014, pet. dism'd) (comprehensively discussing appellate cases that have modified judgments in Anders cases). Therefore, if counsel determines that there are no meritorious issues regarding appellant's convictions or punishments, it would be appropriate to file a motion to withdraw and Anders brief requesting the same modifications to the judgments and bills of costs as were contained in the stricken brief. This procedure allows appellant the opportunity to file a pro se response raising any issues he so chooses and concurrently affords this Court the opportunity to independently review the record for any arguable issues, thereby preserving appellant's constitutional rights.
Appellant's brief is due within thirty (30) days from the date of this order.
It is so ordered.
Response sent, thank you
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Docket No: No. 10-19-00375-CR
Decided: October 14, 2020
Court: Court of Appeals of Texas, Waco.
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