Opinion
NO. 12-15-00240-CRNO. 12-15-00241-CR
07-20-2016
HENRY EARL RANDLE, APPELLANT v. THE STATE OF TEXAS, APPELLEE
APPEAL FROM THE 145TH JUDICIAL DISTRICT COURT NACOGDOCHES COUNTY, TEXASORDER
Henry Earl Randle appeals his convictions for theft, for which he was sentenced to two terms of imprisonment for one year each, to be served concurrently. Appellant's counsel filed a brief asserting compliance with Anders v. California, 386 U.S. 738, 87 S. Ct. 1396, 18 L. Ed. 2d 493 (1967). We strike counsel's brief, remove this case from the submissions docket, and order counsel to file a brief in compliance with this order.
BACKGROUND
Appellant was charged by two separate indictments with theft. He pleaded "guilty" and the matter proceeded to a bench trial on punishment. The trial court assessed Appellant's punishment at imprisonment for one year in each case. This appeal followed.
ANDERS BRIEFS
Appellant's appointed counsel has filed a motion to withdraw and a brief stating that this appeal is frivolous. Because counsel asserts compliance with Anders v. California, we must determine whether such compliance has been achieved.
If an appellant's attorney believes his appeal is frivolous, he must withdraw from representing him. Jeffery v. State, 903 S.W.2d 776, 779 (Tex. App.-Dallas 1995, no pet.) (citing McCoy v. Ct. App. of Wis., Dist. 1, 486 U.S. 429, 437, 108 S. Ct. 1895, 1901, 9 L. Ed. 2d 811 (1963)); Anders, 386 U.S. at 744, 87 S. Ct. at 1400). To withdraw from representation, the appointed attorney must file a motion to withdraw accompanied by a brief showing the appellate court that the appeal is frivolous.Jeffery, 903 S.W.2d at 779 (citing McCoy, 486 U.S. at 439, 108 S. Ct. at 1902; Anders, 386 U.S. at 744, 87 S. Ct. at 1400). This brief in support of the motion to withdraw is the document now commonly called an "Anders" brief. Jeffery, 903 S.W.2d at 779. Counsel's Duties
The procedural safeguards of Anders and its progeny apply to counsel appointed to represent an indigent appellant. They do not apply to retained attorneys. Jeffery, 903 S.W.2d at 779 n.3. --------
Determining that an appeal is "frivolous" is not a conclusion to be reached lightly by counsel. Johnson v. State, 885 S.W.2d 641, 645 (Tex. App.-Waco 1994, pet. ref'd), modified on other grounds, Wilson v. State, 955 S.W.2d 693 (Tex. App.-Waco 1997, no pet.). As described by the United States Supreme Court, appellate counsel has the duty to "master the trial record, thoroughly research the law, and exercise judgment in identifying the arguments that may be advanced on appeal." McCoy, 486 U.S. at 438, 108 S. Ct. at 1902. "In searching for the strongest arguments available, the attorney must be zealous and must resolve all doubts and ambiguous legal questions in favor of his or her client." Id., 486 U.S. at 444, 108 S. Ct. at 1905. If the only theories that the attorney can discover after this conscientious review of the record and the law are "arguments that cannot conceivably persuade the court," then the appeal should be considered frivolous. Id., 486 U.S. at 436, 108 S. Ct. at 1901. "However, we stress that any point which is 'arguable on [the] merits' is, by definition, not frivolous." Johnson, 885 S.W.2d at 645 (quoting Anders, 386 U.S. at 744, 87 S. Ct. at 1400).
As applied in Texas, the ultimate test of an Anders brief is whether it contains a "professional evaluation of the record demonstrating why, in effect, there are no arguable grounds to be advanced." Johnson, 885 S.W.2d at 646 (quoting High v. State, 573 S.W.2d 807, 812 (Tex. Crim. App. 1978)); see Stafford v. State, 813 S.W.2d 503, 510 n.3 (Tex. Crim. App. 1991). In Texas, an Anders brief need not specifically advance "arguable" issues if counsel finds none, but it must provide record references to the facts and procedural history and set out pertinent legal authorities. In re Schulman, 252 S.W.3d 403, 406 n.9 (Tex. Crim. App. 2008) (orig. proceeding). However, counsel must refer to anything in the record that might arguably support the appeal. See Anders, 386 U.S. at 744, 87 S. Ct. at 1400; Schulman, 252 S.W.3d at 406 n.9. Further "[t]his court will not accept [Anders] briefs unless they discuss the evidence adduced at the trial, point out where pertinent testimony may be found in the record, refer to pages in the record where objections were made, the nature of the objection, the trial court's ruling, and discuss either why the trial court's ruling was correct or why the appellant was not harmed by the ruling of the court." Johnson, 885 S.W.2d at 646 (quoting High, 573 S.W.2d at 813). Appellate Review
To satisfy federal constitutional concerns, a court of appeals must be satisfied "that the attorney has provided the client with a diligent and thorough search of the record for any arguable claim that might support the client's appeal." Johnson, 885 S.W.2d at 647 (quoting McCoy, 486 U.S. at 442, 108 S. Ct. at 1904). This task requires that the court examine counsel's motion to withdraw and brief for compliance with the rules set forth above. See Johnson, 885 S.W.2d at 647. A lack of such compliance renders a brief deficient as to form, in which case the court should give counsel an opportunity to file an amended brief addressing the deficiencies. See Banks v. State, 341 S.W.3d 428, 431-32 (Tex. App.-Houston [1st Dist.] 2009, no pet.).
Once a court of appeals is satisfied that counsel has discharged his constitutional duty, the court must determine if the appeal is wholly frivolous. Johnson, 885 S.W.2d at 647. Having conducted such a review, "the court of appeals will either agree the appeal is wholly frivolous, grant the attorney's motion to withdraw, and dismiss the appeal, or it will determine that there may be plausible grounds for appeal." Schulman, 252 S.W.3d at 409. A determination that there may be plausible grounds for appeal renders the brief deficient as to substance. Wilson v. State, 40 S.W.3d 192, 199 (Tex. App.-Texarkana 2001, no pet.). In that case, the court must grant counsel's motion to withdraw and abate the case to the trial court for appointment of new appellate counsel to present the issues identified by the court, along with any other issues that might support the appeal. Id.Discussion
Based on our review of the record, we conclude that counsel's brief does not comply with the prerequisites of Anders and its progeny. In reviewing the record, we determined that the record is incomplete because it contains no transcript of Appellant's plea hearing. In the transcript of the August 7, 2015 sentencing hearing, the trial court makes reference to the fact that Appellant entered his plea of guilty previously on May 22. Counsel's brief does not provide any indication that he has seen or reviewed a transcript of that hearing. Without a complete record, we cannot say that counsel conscientiously searched for potential error and, as a result of the search, legitimately concluded that the appeal is frivolous. Mason v. State, 65 S.W.3d 120, 120 (Tex. App.-Amarillo 2001, no pet.). Thus, counsel has not discharged his constitutional duty, and his brief is consequently deficient as to form. See Banks, 341 S.W.3d at 431-32; McCoy, 486 U.S. at 438, 108 S. Ct. at 1902. Accordingly, we order that counsel review the entire record and submit a brief based on this review. See Banks, 341 S.W.3d at 431-32; Mason, 65 S.W.3d at 121.
CONCLUSION
For the foregoing reasons, we strike counsel's brief and remove this appeal from the submissions docket. We order counsel to immediately file a written request that a supplemental reporter's record including the transcription of Appellant's original plea hearing be certified to this Court and to transmit a copy of such request to this Court no later than July 27, 2016. We order the court reporter to file the supplemental reporter's record within fifteen (15) days of counsel's filing of the written request for it. Finally, we order counsel to file, within thirty (30) days of the filing of the supplemental reporter's record, a brief on the merits, or a brief in compliance with the rules set forth in this order. The State's brief will be due thirty (30) days after counsel files Appellant's brief. After the parties' briefs have been filed, this Court will reschedule the appeal for submission. Order delivered July 20, 2016.
Panel consisted of Worthen, C.J., Hoyle, J., and Neeley, J.