In re Schulman

• Decision Date: 30 April 2008
• Docket Number: No. AP-75,911.,AP-75,911.
• Citation: 252 S.W.3d 403
• Parties: In re David SCHULMAN.
• Court: Texas Court of Criminal Appeals

252 S.W.3d 403

In re David SCHULMAN.

No. AP-75,911.

Court of Criminal Appeals of Texas.

April 30, 2008.

John G. Jasuta, Austin, for Appellant.

Madeleine Connor, Asst. Atty. Gen., Jeffrey L. Van Horn, State's Atty., Austin, for State.

OPINION

COCHRAN, J., delivered the opinion of the unanimous Court.

Mr. David Schulman, the appointed appellate attorney for Marlyn Solanas, filed an application for a writ of mandamus with this Court claiming that the Seventh Court of Appeals violated a ministerial duty when it ordered him to file a motion to withdraw as counsel along with his Anders¹ brief. That brief concludes, as all Anders briefs conclude, that his client's appeal is "frivolous," but Mr. Schulman argues that, while counsel for the defense may file an Anders brief, he is not obligated to simultaneously file a motion to withdraw from representation. This is backwards. Under both Supreme Court and Texas precedent, when counsel files a motion to withdraw because he believes the appeal is frivolous, he may simultaneously file an Anders brief. 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. The court of appeals did not err, much less violate a ministerial duty. We therefore deny relief on this application for a writ of mandamus.

I.

Pursuant to a plea bargain, Marlyn Solanas pled guilty to intoxication manslaughter in Williamson County. She was sentenced to ten years' confinement and a $2,500 fine, but the trial court placed her on community supervision. Over a year later, the State filed a motion to revoke, alleging that she had violated terms of her community supervision. Ms. Solanas pled "True" to the State's allegations, and the trial judge revoked her community supervision and sentenced her to ten years' imprisonment.

Ms. Solanas filed a timely notice of appeal and Relator, Mr. David Schulman, was appointed to represent her. The appeal was transferred to the Seventh Court of Appeals in Amarillo. On May 8, 2007, Mr. Schulman filed an Anders brief with the court of appeals and mailed a copy of this brief to Ms. Solanas, informing her of his actions and of her right to review the record of the proceedings and submit a pro se brief if she so desired.

Mr. Schulman did not simultaneously file a motion to withdraw as counsel with the court of appeals, although the clerk of the court informed him that he was required to do so. Instead, he filed a document entitled "Response to Clerk's Instructions Regarding Motion to Withdraw." He explained that, under Article 26.04(j)(2) of the Code of Criminal Procedure, he was required to "represent the defendant until charges are dismissed, the defendant is acquitted, appeals are exhausted, or the attorney is relieved of his duties by the court or replaced by other counsel after a finding of good cause is entered on the record."² Mr. Schulman also stated that he was required to inform his client of her right to file a pro se petition for discretionary review to this Court even though he filed an Anders brief.³ He noted that prior cases also implied that he must continue to answer questions posed by his client that "are reasonably related to this case and/or the procedures to be followed in seeking further review." Mr. Schulman argued that, from a moral standpoint, "his duty to assist [his client] is not and cannot be extinguished by the filing of an Anders brief."⁴ Finally, Mr. Schulman lamented that "the procedures used in the various Courts of Appeals regarding this issue are wholly inconsistent. Some courts of appeals require counsel to file a motion to withdraw, some take no position, others do not require counsel to withdraw." He requested that the Seventh Court of Appeals abandon its "policy" of requiring an attorney who files an Anders brief to simultaneously file a motion to withdraw as counsel.

After receiving Mr. Schulman's response, the court of appeals entered an order requesting him to reconsider his refusal to file a motion to withdraw and afforded him additional time to do so.⁵ The court noted that Mr. Schulman's response was "very principled," but his "insistence on his duty to represent Appellant after the filing of an Anders brief is misplaced and is, in fact, an impediment to this Court's role in reviewing an Anders appeal."⁶ Instead of complying with the court's order, Mr. Schulman filed an application for writ of mandamus and/or prohibition with this Court. We entered an order granting Mr. Schulman's motion to stay the proceedings and affording the court of appeals an opportunity to respond. The Office of the Attorney General of Texas filed a response on behalf of the court of appeals. We filed and set this matter for consideration.

II.

A criminal defense attorney's duty is to zealously represent the interests of his client on appeal.⁷ If the appointed attorney finds the "case to be wholly frivolous, after a conscientious examination of it, he should so advise the court and request permission to withdraw."⁸ It is the motion to withdraw that is required in this situation. The so-called "Anders" brief accompanies the motion to withdraw as an assurance to the appellate court that the attorney has indeed made a thorough and conscientious examination of the record, has provided the appellate court with the appropriate facts of the case and its procedural history, and has pointed out any potentially plausible points of error.⁹ In Anders, the Supreme Court held that the appellate attorney could not fulfill his obligation to represent his client by filing a letter merely stating that he has concluded that the appeal is frivolous.¹⁰ Such a "no-merit letter," setting out nothing more than a "bare conclusion," is not enough to assure the appellate courts that the attorney has made a thorough review of the record and the applicable law, but has nonetheless concluded that there is no plausible basis for appeal.¹¹

The attorney's duty to withdraw is based upon his professional and ethical responsibilities as an officer of the court not to burden the judicial system with false claims, frivolous pleadings, or burdensome time demands. The Supreme Court has stated,

Neither paid nor appointed counsel may deliberately mislead the court with respect to either the facts or the law, or consume the time and the energies of the court or the opposing party by advancing frivolous arguments. An attorney, whether appointed or paid, is therefore under an ethical obligation to refuse to prosecute a frivolous appeal.¹²

Counsel's obligation to his client is to seek leave to withdraw as counsel. His obligation to the appellate courts is to assure them, through the mechanism of an Anders brief, that, after thorough investigation and research, his request is well founded.¹³

The Anders brief reflects the fact that the appointed attorney has adequately researched the case before requesting to withdraw from further representation. It also sets out the attorney's due diligence investigation on behalf of his client. It has an additional use for the appellate courts: it provides them with a roadmap for their review of the record because the court itself must be assured that the attorney has made a legally correct determination that the appeal is frivolous.¹⁴ It has an additional use for the defendant: it provides him with appropriate citations to the record if he wishes to exercise his right to file a pro se brief.¹⁵ And it has an additional use for the appointed attorney: it protects him "from the constantly increasing charge that he was ineffective and had not handled the case with that diligence to which an indigent defendant is entitled."¹⁶ Despite its helpfulness to all concerned, the Anders brief is only the proverbial "tail"; the motion to withdraw is "the dog."¹⁷

Of course, the Anders procedure is not constitutional dogma. It is "merely one method of satisfying the requirements of the Constitution for indigent criminal appeals."¹⁸ Texas is free to adopt other procedures as long as they meet federal constitutional requirements.¹⁹ Although Texas may choose to adopt a different mechanism for dealing with frivolous appeals, it has thus far followed the Anders procedure.²⁰

Although the defense attorney is required to file a motion to withdraw at the same time that he files an Anders brief, the court of appeals will not grant that motion until:

(1) the attorney has sent a copy of his Anders brief to his client along with a letter explaining that the defendant has the right to file a pro se brief within thirty days, and he has ensured that his client has, at some point, been informed of his right to file a pro se PDR;²¹

(2) the attorney has informed the court of appeals that he has performed the above duties;²² (3) the defendant has had time in which to file a pro se response;²³ and

(4) the court of appeals has itself reviewed the record, the Anders brief, and any pro se brief.²⁴

After the completion of these four steps, the court of appeals will either agree that 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.²⁵ If the court of appeals decides that there are any colorable claims for appeal, it will: (1) grant the original attorney's motion to withdraw; and (2) abate the case and send it back to the trial court to appoint a new attorney with directions to file a merits brief.²⁶

III.

This particular procedure, though not required by the federal constitution,²⁷ seems to work relatively well in Texas. We see no reason to change it at this time. And under this procedure, the Seventh Court of Appeals appropriately ordered the Relator, Mr. Schulman, to file a motion to withdraw as a condition precedent to filing his Anders brief.

The Relator, in his application for a writ of mandamus, argues that he should not be required to file a motion to withdraw because he...