High v. State, 52466
Citation | 573 S.W.2d 807 |
Decision Date | 29 November 1978 |
Docket Number | No. 52466,No. 1,52466,1 |
Parties | Jerry Lee HIGH, Appellant, v. The STATE of Texas, Appellee |
Court | Court of Appeals of Texas. Court of Criminal Appeals of Texas |
Gerald B. Scheve, Houston, for appellant.
Carol S. Vance, Dist. Atty. and Alvin M. Titus, Asst. Dist. Atty., Houston, for the State.
Before ONION, P. J., and ROBERTS and W. C. DAVIS, JJ.
Appellant was convicted by a jury for aggravated sexual abuse of a child. The jury assessed punishment at imprisonment for ten (10) years.
On May 26, 1976, we abated the appeal and ordered the trial court to conduct a hearing on the question of appellant's indigency vel non. Subsequent to that decision, the trial court found appellant indigent, ordered a free transcription of the court reporter's notes, and appointed counsel to represent appellant on appeal. The cause is again before us on a supplemental transcript, which contains a transcription of the court reporter's notes and a "frivolous appeal" brief filed by court-appointed appellate counsel, who was also retained counsel at trial. Therefore, we reinstate the appeal for further consideration.
Since we find that the brief filed by court-appointed counsel does not measure up to the decision of the Supreme Court of the United States in Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), nor to the decision of this court in Currie v. State, 516 S.W.2d 684 (Tex.Cr.App.1974), we find it necessary to abate this appeal again for further proceedings. Moreover, since far too many appeals have had to be abated by this court for non-compliance with Anders and Currie, we find it necessary and appropriate to elaborate on those decisions and to discuss the duty of the trial courts of this state in seeing that the requirements of those decisions are met.
Following the giving of notice of appeal, the first decision on the merits of an appeal belongs to the trial court. Article 40.09(12), V.A.C.C.P., provides:
This rather unique provision in our appellate procedure was designed to give a conscientious trial judge the opportunity to see the briefs, the contentions and the appellate record as it will appear on review to the Court of Criminal Appeals with the authority at that point to grant a new trial if the trial judge believes the same is called for. If the reversible error is apparent, there is no logic in allowing the case to proceed through appellate process until the Court of Criminal Appeals reverses the case. Much delay and waste of judicial time and effort occurs otherwise. There was another purpose to the above provision and that was the hope that trial judges in performing their duty thereunder might lessen the heavy caseload of the Court of Criminal Appeals.
It appears, however, from the records coming before this court, especially those from metropolitan and other areas where dockets are crowded, the duty imposed by § 12 of Article 40.09, supra, is omitted more often than it is performed. Yet, this is an important duty, not only for the reasons discussed above but to afford an indigent appellant with the effective assistance of counsel. This is especially true in cases in which court-appointed counsel files a "frivolous appeal" brief. When this is done, the trial judge should determine if the "frivolous appeal" brief meets the minimum requirements of Anders and Currie. If this duty is not performed by the trial court, this court, many months later, must abate the appeal and remand the cause to the trial court for compliance with those decisions. Thus, where trial judges fail to perform their duty and this court is left to enforce the requirements of Anders and Currie much delay results, judicial manpower is wasted and criticism is heaped upon the administration of criminal justice in Texas.
The Court of Criminal Appeals has the heaviest caseload of any state appellate court in this nation, and we are required to write an opinion in every case decided. The docket is overcrowded, the work overwhelming, nevertheless we are constantly confronted with reviewing records where the "frivolous appeal" briefs do not meet the requirements of Anders and Currie and nothing was done in the trial court before the record came to this court, even in those trial courts blessed with court administrators and coordinators, etc. The better practice would be for court-appointed counsel on appeal to inform the court by letter or other instrument available for filing that he has filed a "frivolous appeal" brief, and certainly clerk personnel should be alert enough to call the matter to the court's attention, and trial court administrators and coordinators, available in many courts, should be examining these appellate records in order to call such matters to the trial judge's attention.
We have had previous occasion to discuss the duty of trial judges in cases where no brief is filed in an indigent appellant's behalf. In Yates v. State, 557 S.W.2d 115 (Tex.Cr.App.1977), we stated:
The statements in Yates are equally applicable to cases in which "frivolous appeal" briefs are filed in behalf of an indigent; and, it is the primary duty of the trial courts to see that the requirements of Anders and Currie are met.
In Guillory v. State, 557 S.W.2d 118 (Tex.Cr.App.1977), we had occasion to discuss in further detail how trial judges might handle the situation where no brief is filed in an indigent appellant's behalf. The following language from that opinion is equally applicable to cases in which "frivolous appeal" briefs are filed in behalf of an indigent:
We are confident that trial judges will perform their responsibility under Article 40.09(12), supra, and will see to it that any "frivolous appeal" briefs filed in their courts will pass muster under Anders and Currie. We now turn to what Anders requires of court-appointed counsel and the reviewing court.
In Anders the defendant's appointed counsel had written the reviewing court, stating:
In holding this insufficient, Mr. Justice Clark, speaking for a majority of the Court, stated:
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...... It reads: "1. I am an active member of the California State Bar. [p] 2. I am appointed counsel on appeal for appellant. [p] 3. I have thoroughly reviewed ...Gonzalez (1979) 47 N.Y.2d 606 [419 N.Y.S.2d 913, 393 N.E.2d 987]; High v. State (Tex.Crim.App.1978) 573 S.W.2d 807; Holloway v. Hopper (1975) 233 Ga. 615 [212 S.E.2d ......
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