Kelly v. State

• Citation: 436 S.W.3d 313
• Decision Date: 25 June 2014
• Docket Number: No. PD–0702–13.,PD–0702–13.
• Parties: Sylvester KELLY, Appellant v. The STATE of Texas.
• Court: Court of Appeals of Texas. Court of Criminal Appeals of Texas

436 S.W.3d 313

Sylvester KELLY, Appellant

v.The STATE of Texas.

No. PD–0702–13.

Court of Criminal Appeals of Texas.

June 25, 2014.

Tim Cone, Gilmer, for Appellant.

Zan Colson Brown, Assistant District Attorney, Lisa C. McMinn, State's Attorney, Austin, for the State.

OPINION

PRICE, J., delivered the opinion of the court in which MEYERS, WOMACK, JOHNSON, KEASLER, HERVEY and COCHRAN, JJ., joined.

When appointed appellate counsel files a so-called Anders brief, ¹ the indigent appellant has a right to review the appellate record and file a response in the court of appeals, pointing out to the appellate court any reason why he thinks there are non-frivolous issues to be raised on his behalf, notwithstanding his appointed counsel's evaluation of the record. In this petition for discretionary review, we address the question of who should bear the ultimate responsibility for assuring that the indigent appellant is allowed access to the appellate record in order to implement this right. We hold that appointed counsel has a duty, once he has filed a motion to withdraw from representation with accompanying Anders brief, to assist the appellant in filing a motion in the court of appeals for access to the appellate record if that is indeed what the appellant wants. Once such a motion is filed, the court of appeals has the ultimate responsibility to make sure that, one way or another (we shall not dictate how), the appellant is granted access to the appellate record so that he may file his response (if, after reviewing the record, he does decide to file one) before it rules on the adequacy of the Anders brief and appointed counsel's motion to withdraw.

FACTS AND PROCEDURAL POSTURE

A jury convicted the appellant of aggravated robbery, and the trial court sentenced him to fifty years' incarceration. Because he was indigent, the trial court appointed a lawyer to represent him on appeal. The appellant's appointed counsel on appeal was unable to find any meritorious points of error to raise, however, and filed a motion to withdraw with an Anders brief. He wrote a letter to the appellant to inform him, inter alia, of his right to file a pro se response to the Anders brief. Trial counsel also specifically informed the appellant that he was entitled to review the appellate record in preparing that response, advising him to request the trial court to provide him with a copy of the trial record.² The appellant instead filed a pro se motion in the court of appeals requesting access to the appellate record.³ When the appellant neither filed a response to the Anders brief nor sought an extension of time to do so, the Sixth Court of Appeals issued an unpublished memorandum opinion that determined the appeal to be “wholly frivolous.” ⁴ It therefore granted appointed counsel's motion to withdraw from the appeal and affirmed the appellant's conviction, making no mention of any motion for access to the appellate record.⁵ The appellant apparently filed a motion for rehearing in which he once again complained that he had been deprived of access to the appellate record in order to prepare a response; the court of appeals appears to have denied this motion.⁶

The appellant duly filed a petition for discretionary review in this Court, arguing that the court of appeals violated his rights to due process and due course of law by deeming his appeal to be frivolous without first granting him access to the appellate record so that he could prepare an adequate response to his appointed counsel's Anders brief. We granted the appellant's petition and ordered the trial court to appoint counsel for the appellant to brief the issue. In their respective briefs, both the State and the appellant have now agreed that the appellant should have been allowed access to the appellate record in order to prepare his response to appointed counsel's Anders brief. ⁷ In the absence of any governing rule in the Texas Rules of Appellate Procedure, however, or any case law providing a uniform procedure for ensuring that a pro se appellant who so desires may gain access to the appellate record under these circumstances,⁸ the State could only suggest that “[t]his Court ... assign someone the responsibility of arranging access.” ⁹ Indeed, we ourselves have previously acknowledged “that there is a need for uniform procedures for those cases in which an Anders brief is filed, especially as the Texas Rules of Appellate Procedure do not provide any explicit guidance.” ¹⁰

In order to educate ourselves about whatever procedures may presently be in place, we solicited information from the various courts of appeals with respect to how they currently go about ensuring that appellate records are made available to indigent pro se appellants who wish to review them in order to respond to Anders briefs. More specifically, we invited the clerks of the fourteen courts of appeals in Texas to file amicus briefs or letters “informing us of the current policies and procedures in their respective districts for ensuring that pro se appellants who so desire are granted access to the appellate record for purposes of responding to Anders briefs.” ¹¹ After considering the various responses of amici, we now endeavor to more specifically assign responsibility for giving the appellant access to the appellate record in a timely and efficient manner without unduly encroaching on the discretion of the courts of appeals to handle each case as the circumstances prescribe.

ANALYSIS

In response to our invitation to submit amicus briefs/letters, the Clerk of the Sixth Court of Appeals has indicated that “[o]ur procedures vary according to the situation.” Upon receiving an Anders brief, the Sixth Court first makes sure that appellate counsel has informed the appellant of, inter alia, his right to review the appellate record. The more “helpful” appellate attorneys send a copy of the record to the appellant, we are told, but “[i]n the absence of such a proactive behavior, if the appellant contacts this Court requesting a record, we typically refer him or her alternatively to the defense attorney or the trial clerk.” Thus, the Sixth Court has adopted a policy that appellate counsel “has the responsibility to procure a copy of the record for appellant to review in preparation of the pro se response to the Anders brief.” ¹² We cannot tell from the record before us in this case whether the Sixth Court, in keeping with this policy, referred the appellant to his appellate counsel or the trial clerk. We agree with the Sixth Court that appellate counsel has a continuing responsibility to his client, extending beyond the filing of a motion to withdraw and Anders brief, to facilitate the appellant's access to the appellate record should the appellant so desire. But we believe that the courts of appeals also have an on-going responsibility, once an appellant manifests his desire for pro se record access, to officially guide the process and follow through to make sure that such access is granted before they rule on the validity of appointed counsel's Anders brief and motion to withdraw.

Appointed Counsel's Responsibility

Once appellate counsel is appointed to represent an indigent client, his only justification for filing an Anders brief is his ethical obligation to avoid burdening the courts with wholly frivolous appeals.¹³ When his good-faith review of the law and record suggests to him no plausible grounds for appeal, appointed counsel'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.” ¹⁴ The purpose of the Anders brief is to satisfy the appellate court that the appointed counsel's motion to withdraw is, indeed, based upon a conscientious and thorough review of the law and facts; “the Anders brief is only the proverbial ‘tail’ [while] the motion to withdraw is ‘the dog.’ ” ¹⁵ That being the case, the court of appeals may not immediately grant the motion to withdraw, even though the granting of a motion to withdraw is inevitable once an Anders brief has been filed.¹⁶Instead, the appellate court must wait “until such time as [it] has made a determination whether appointed counsel has exercised sufficient diligence in assaying the record for error, and that there are, in fact, no arguable issues in the case.” ¹⁷ “Counsel's duties to his client are not extinguished until that time.” ¹⁸ Appointed counsel's duties of representation, therefore, do not cease simply because he has submitted a motion to withdraw, along with supporting Anders brief, in the court of appeals. Until such time as the court of appeals relieves him of this professional obligation, appellate counsel must continue to “act with competence, commitment and dedication to the interest of the client and with zeal in advocacy upon the client's behalf.” ¹⁹

We have previously acknowledged that an appointed lawyer who files an Anders brief must fulfill a number of additional functions. He must write a letter to (1) notify his client of the motion to withdraw and the accompanying Anders brief, providing him a copy of each, (2) inform him of his right to file a pro se response and of his right to review the record preparatory to filing that response, and (3) inform him of his pro se right to seek discretionary review should the court of appeals declare his appeal frivolous.²⁰ To this list we now add that appointed counsel who files a motion to withdraw and Anders brief must also (4) take concrete measures to initiate and facilitate the process of actuating his client's right to review the appellate record, if that is what his client wishes. We think that the most time-efficient method to facilitate this right of review is to require that, at the same time that he files the motion to withdraw and Anders brief and carries out the notification functions (1) through (3), listed above, appointed counse...