Johnson v. State

• Decision Date: 19 October 1994
• Docket Number: 10-94-113-CR,Nos. 10-94-035-C,10-94-085-C,s. 10-94-035-C
• Citation: 885 S.W.2d 641
• Parties: Mack Edward JOHNSON, Appellant, v. The STATE of Texas, Appellee. Sammy Mendez GARCIA, Appellant, v. The STATE of Texas, Appellee. Vernon JACKSON, Appellant, v. The STATE of Texas, Appellee. James Curtis SHEPPARD, Appellant, v. The STATE of Texas, Appellee. to 10-94-118-CR and 10-94-137-CR.
• Court: Texas Court of Appeals

Page 641

885 S.W.2d 641

Mack Edward JOHNSON, Appellant, v. The STATE of Texas, Appellee.

Sammy Mendez GARCIA, Appellant, v. The STATE of Texas, Appellee.

Vernon JACKSON, Appellant, v. The STATE of Texas, Appellee.

James Curtis SHEPPARD, Appellant, v. The STATE of Texas, Appellee.

Nos. 10-94-035-CR, 10-94-085-CR, 10-94-113-CR to

10-94-118-CR and 10-94-137-CR.

Court of Appeals of Texas Waco.

Oct. 19, 1994.

Walter M. Reaves, Jr., Waco, for appellant.

John Segrest, Crim. Dist. Atty., Mark E. Parker, Asst. Dist. Atty., Waco, for appellee in No. 10-94-035-CR.

Carl L. McNeill, Dallas, for appellant in No. 10-94-085-CR.

John C. Vance, Crim. Dist. Atty., Kimberly A. Schaefer, Asst. Dist. Atty., Dallas, for appellee in No. 10-94-085-CR.

Etta J. Mullin, Dallas, for appellant in Nos. 10-94-113-CR to 10-94-118-CR.

John Vance, Crim. Dist. Atty., Pamela Sullivan Berdanier, Richard Reed & Dan Patterson, Asst. Dist. Attys., Dallas, Robert Huttash, State Pros. Atty., Austin, for appellee in Nos. 10-94-113-CR to 10-94-118-CR.

Fred Tinsley, Dallas, for appellant in No. 10-94-137-CR.

John C. Vance, Crim. Dist. Atty., Karen R. Wise & Patrick Kirlin, Asst. Dist. Attys., Dallas, for appellee in No. 10-94-137-CR.

Before THOMAS, C.J., and CUMMINGS and VANCE, JJ.

ORDER

PER CURIAM.

Because this court has been presented with an increasing number of Anders briefs recently, we will use these combined causes to outline our understanding of "Anders' law," both procedural and substantive, and the duties of the bench and bar of this district when confronted with an apparently frivolous appeal. See Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967). The rule that a defendant does not have the constitutional right to assistance of counsel for a petition for discretionary review to the Court of Criminal Appeals has effectively ended that court's experience with "frivolous appeals." See Ayala v. State, 633 S.W.2d 526 (Tex.Crim.App.1982). In fact, since the intermediate courts of appeals were given criminal jurisdiction by constitutional amendment in 1981, the Court of Criminal Appeals has dealt substantively with Anders in only three published opinions. Stafford v. State, 813 S.W.2d 503 (Tex.Crim.App.1991); Sutherland v. State, 658 S.W.2d 169 (Tex.Crim.App.1983); Ayala, 633 S.W.2d at 526. Similarly, we find only one published opinion from this court relating to an Anders issue. See Graham v. State, 649 S.W.2d 719 (Tex.App.--Waco 1983, no pet.).

In Texas, every individual convicted of a crime has a statutory right to an appeal. TEX.CODE CRIM.PROC.ANN. art. 44.02 (Vernon 1979 & Supp.1994). For non-death-penalty felonies and certain misdemeanor convictions, that appeal by right is to an intermediate court of appeals. See id. art. 4.03 (Vernon Supp.1994). The Fourteenth Amendment to the United States Constitution dictates that each of these offenders has a right to the assistance of counsel on appeal. Douglas v. California, 372 U.S. 353, 357-58, 83 S.Ct. 814, 817, 9 L.Ed.2d 811 (1963). Thus, when the defendant is indigent, the state is required to provide counsel to represent him on appeal. Id.

However, a defendant's right to assistance of counsel does not included the right to have an attorney urge frivolous or unmeritorious claims. Penson v. Ohio, 488 U.S. 75, 83-84, 109 S.Ct. 346, 351-52, 102 L.Ed.2d 300 (1988). If a retained attorney concludes that an appeal lacks merit, counsel is obligated to inform the client of this conclusion and refuse to prosecute the appeal. McCoy v. Court of Appeals of Wisconsin, Dist. 1, 486 U.S. 429, 437, 108 S.Ct. 1895, 1901, 100 L.Ed.2d 440 (1988); TEX.DISCIPLINARY R.PROF.CONDUCT 3.01 (1989), reprinted in TEX.GOV'T CODE ANN., tit. 2, subtit. G app. (Vernon Supp.1994) (STATE BAR RULES art. X, § 9). Refusing to prosecute an appeal means that the retained attorney will be required to file a motion to withdraw under our rules of appellate procedure. See TEX.R.APP.P. 7. However, the decision to withdraw from retained representation does not invoke federal constitutional concerns. The procedural safeguards outlined in the Anders cases apply only to an appointed attorney representing an indigent defendant on a first appeal by right. See Penson, 488 U.S. at 83-84, 109 S.Ct. at 351-52; McCoy, 486 U.S. at 438-39, 108 S.Ct. at 1902; Anders, 386 U.S. at 744-45, 87 S.Ct. at 1400.

If an attorney appointed to represent an indigent defendant reaches the same conclusion, he is required to inform the appellate court and seek permission to withdraw from the representation. McCoy, 486 U.S. at 437, 108 S.Ct. at 1901. This additional duty to inform the court arises because appointed counsel cannot withdraw without our consent. See TEX.CODE CRIM.PROC.ANN. art. 26.04(a) (Vernon 1989). However, in seeking permission to withdraw, the attorney may not simply state an opinion that the appeal is frivolous, but must instead continue to support the client's appeal to the best of his ability. See Anders, 386 U.S. at 744, 87 S.Ct. at 1400. Thus, even though the attorney has concluded that the appeal does not have merit, he continues to be obligated to his client. This obligation is fulfilled in two ways: first, by exerting all effort to find legally cognizable arguments for the client and, second, by ensuring that the client understands the available options after the attorney withdraws. See McCoy, 486 U.S. at 438-39 & n. 12, 108 S.Ct. at 1902 & n. 12.

I. DUTIES OF THE ATTORNEY

A. DETERMINING THAT THE APPEAL IS "FRIVOLOUS"

Determining that an appeal is "frivolous" is not a conclusion to be reached lightly. 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 (emphasis added). 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 (emphasis added). However, we stress that any point which is "arguable on [the] merits" is, by definition, not frivolous. See Anders, 386 U.S. at 744, 87 S.Ct. at 1400.

B. FILING REQUIREMENTS

After concluding that the appeal is frivolous, the attorney is under a duty to request permission from this court to withdraw from the appeal. See McCoy, 486 U.S. at 436-37, 108 S.Ct. at 1901; TEX.DISCIPLINARY R.PROF.CONDUCT 3.01. After our jurisdiction is invoked, a motion in the trial court is neither appropriate nor sufficient to relieve counsel of the duties accepted on becoming a defendant's attorney of record on appeal. See Moore v. State, 466 S.W.2d 289, 291 & n. 1 (Tex.Crim.App.1971); Fowler v. State, 874 S.W.2d 112, 114 (Tex.App.--Austin 1994, pet. ref'd). Accordingly, the attorney is required to file a "Motion To Withdraw From Frivolous Appeal" in this court.

The motion to withdraw must be accompanied by two exhibits. The first exhibit should be a brief in support of the motion. Anders recognized that the motion and the brief are to be separate documents, and our own appellate rules of procedure contemplate that the two will not be combined. See Anders, 386 U.S. at 744, 87 S.Ct. at 1400; TEX.R.APP.P. 19. Thus, the practice of placing the motion to withdraw at the end of the brief is not acceptable or sufficient to fulfill the attorney's duty to this court. The second exhibit accompanying the motion to withdraw should provide us a basis for concluding that the attorney has fulfilled his duty to inform the client.

1. BRIEF IN SUPPORT OF THE MOTION TO WITHDRAW

The brief in support of the motion to withdraw is a device for assuring that the indigent defendant's constitutional rights have been "scrupulously honored." McCoy, 486 U.S. at 444, 108 S.Ct. at 1904. Thus, such briefs should provide us "with a basis for determining whether appointed counsel have fully performed their duty to support their clients' appeals to the best of their ability." See id. 486 U.S. at 439, 108 S.Ct. at 1902.

As applied in Texas, then, the ultimate test of a frivolous-appeal brief is whether it contains a "professional evaluation of the record demonstrating why, in effect, there are no arguable grounds to be advanced." High v. State, 573 S.W.2d 807, 812 (Tex.Crim.App. [Panel Op.] 1978); see also Stafford, 813 S.W.2d at 510 n. 3. As observed by the Court of Criminal Appeals:

[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.

See High, 573 S.W.2d at 813; Graham, 649 S.W.2d at 720. A proper brief must contain citations to legal authority supporting the attorney's analysis and conclusions. Anders, 386 U.S. at 745, 87 S.Ct. at 1400; Stafford, 813 S.W.2d at 510 n. 3; High, 573 S.W.2d at 811. A similar "discussion rule" imposed by the Wisconsin courts has been upheld by the United States Supreme Court. McCoy, 486 U.S. at 440-43, 108 S.Ct. at 1903-04.

Counsel should not pray for a reversal in a brief filed in support of a motion to withdraw from a frivolous appeal. Smith v. State, 814 S.W.2d 858, 859 (Tex.App.--Amarillo 1991, no pet.); Cantu v. State, 781 S.W.2d 953, 953 (Tex.App.--Beaumont 1989, no pet.). Additionally, the frivolous-appeal procedures should only be followed when the appeal is wholly frivolous. Rice v. State, 746 S.W.2d 356, 356-57 &...