High v. State, 52466

Citation573 S.W.2d 807
Decision Date29 November 1978
Docket NumberNo. 52466,No. 1,52466,1
PartiesJerry Lee HIGH, Appellant, v. The STATE of Texas, Appellee
CourtCourt 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.

OPINION

ONION, Presiding Judge.

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:

"It shall be the duty of the trial court to decide from the briefs and oral arguments, if any, whether the defendant should be granted a new trial by the trial court. This duty shall be performed within the period of thirty days immediately after the state's brief is filed, or, if none be filed, then within the period of thirty days immediately after the last day on which the state's brief could be timely filed. Omission of the court to perform this duty within such period shall constitute refusal of the court to grant a new trial to defendant."

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:

"It is settled that the Texas and United States Constitutions require that an indigent defendant is entitled to the effective assistance of counsel on appeal. Douglas v. California, 372 U.S. 353, 83 S.Ct. 814, 9 L.Ed.2d 811 (1963); Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967); Currie v. State, 516 S.W.2d 684 (Tex.Cr.App.1974); Hawkins v. State, 515 S.W.2d 275 (Tex.Cr.App.1974); McMahon v. State, 529 S.W.2d 771 (Tex.Cr.App.1975). And, the decision of the Supreme Court of the United States in Anders v. California, supra, requires that court-appointed counsel file a brief in appellant's behalf. In the instant case the court-appointed counsel has failed to perform that duty.

"The appeal will be abated so that appellate briefs may be filed. It will be the duty of the trial court to see that this is done under Article 40.09, V.A.C.C.P. If this is not done, the trial court has authority to punish for contempt under Article 1911a, V.A.C.S.

"The court still has control over the case until the record reaches this Court. Rangel v. State, 408 S.W.2d 231 (Tex.Cr.App.1966). Even though a late brief is filed, he can grant a new trial. If the court refused to grant a new trial after a late brief has been filed and the record is forwarded to this Court, then this Court will determine if the brief will be considered on appeal. This will give the trial court an opportunity to pass upon the grounds raised in the brief before it reaches this Court."

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:

"As has been stated above, the trial court also has the duty to provide an indigent defendant with the effective assistance of counsel on appeal. This assistance, however, cannot be afforded without requiring that counsel file a brief in an appellant's behalf. The trial judge has the authority to require appointed counsel to file a brief in appellant's behalf. Luna v. State, 527 S.W.2d 548 (Tex.Cr.App.1975). If a court-appointed attorney fails to file a brief within the time provided by Art. 40.09(9) and fails to request an extension of time from this Court under Art. 40.09(16), the trial court still has the authority to require appointed counsel to file a brief in an appellant's behalf. There are many ways for the trial court to exercise this authority. Upon learning that no brief has been filed in appellant's behalf under Art. 40.09(9), the trial court can issue an order commanding court-appointed counsel to file a brief within a specified period of time. If no brief is filed within that time, the trial court can issue another order requiring counsel to show cause as to why he should not be held in contempt. See Art. 1911a, supra. The trial court can also report counsel to the appropriate grievance committee for disciplinary action. In the alternative, the trial judge can relieve an appointed attorney who has not fulfilled his duties to his client and appoint an attorney who will act as an advocate to represent the indigent on appeal. The trial judge can also see to it that recalcitrant attorneys receive no further appointments to represent indigents in his court."

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:

"I will not file a brief on appeal as I am of the opinion that there is no merit to the appeal. I have visited and communicated with Mr. Anders and have explained my views and opinions to him . . . . (H)e wishes to file a brief in this matter on his own behalf."

In holding this insufficient, Mr. Justice Clark, speaking for a majority of the Court, stated:

"The constitutional...

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