Wilson v. State

• Decision Date: 30 March 2001
• Docket Number: No. 06-00-00008-CR,06-00-00008-CR
• Parties: (Tex.App.-Texarkana 2001) TIMOTHY CLYDE WILSON, Appellant v. THE STATE OF TEXAS, Appellee
• Court: Texas Court of Appeals

Page 192

40 S.W.3d 192 (Tex.App.-Texarkana 2001)

TIMOTHY CLYDE WILSON, Appellant v. THE STATE OF TEXAS, Appellee

No. 06-00-00008-CR

In The Court of Appeals Sixth Appellate District of Texas at Texarkana.

March 30, 2001.

On Appeal from the 252nd Judicial District Court Jefferson County, Texas Trial Court No. 73806

[Copyrighted Material Omitted]

[Copyrighted Material Omitted]

Before Cornelius, C.J., Grant and Ross, JJ.

ORDER

GRANT, Justice.

Timothy Wilson appeals his conviction for aggravated sexual assault of a child. In a two-count indictment, the State alleged that Wilson assaulted his eight-year-old stepdaughter orally and vaginally. At the close of trial, the State abandoned the allegation that Wilson assaulted the victim vaginally. The jury convicted Wilson and sentenced him to fifteen years' confinement.

Wilson's attorney has filed an appellate brief in which he concludes that after a review of the record and the related law, the appeal is frivolous and without merit. Wilson has filed a pro se response in which he alleges ineffective assistance of counsel. We take this opportunity to review the proper procedures for cases in which an attorney asserts the appeal is without merit.

Every person convicted of a crime in Texas has a statutory right to appeal. Tex. Code Crim. Proc. Ann. art. 44.02 (Vernon 1979). The Fourteenth Amendment to the United States Constitution guarantees the right to assistance of counsel on appeal. Douglas v. California, 372 U.S. 353, 357-58, 83 S.Ct. 814, 9 L.Ed.2d 811, 815 (1963). Thus, the State must appoint counsel on appeal to an indigent person to afford that person the same protections for which a nonindigent person can pay. Id.

Nevertheless, a defendant does not have the right to have a frivolous or nonmeritorious appeal filed on his behalf. Penson v. Ohio, 488 U.S. 75, 83-84, 109 S.Ct. 346, 102 L.Ed.2d 300, 311 (1988). In fact, an attorney has a duty not to pursue such an appeal. Tex. Disciplinary R. Prof'l Conduct 3.01, reprinted in Tex. Gov't Code Ann., tit. 2, subtit. G app. A (Vernon 1998) (Tex. State Bar R. art. X, § 9).

In Anders v. California, 386 U.S. 738, 744, 87 S.Ct. 1396, 18 L.Ed.2d 493, 498 (1967), the United States Supreme Court outlined a procedure for ensuring that an indigent defendant's right to counsel on appeal is honored when his attorney asserts that the appeal is without merit. Anders provides a prophylactic procedure, and the Supreme Court has made it clear that states are free to adopt different procedures as long as the indigent person's right to appellate counsel is adequately safeguarded. Smith v. Robbins, 528 U.S. 259, 265, 120 S.Ct. 746, 145 L.Ed.2d 756, 767 (2000).

Under Anders and its progeny, if an appointed attorney concludes that his client's appeal is without merit, he must (1) so inform the court, (2) seek permission to withdraw, and (3) file a brief "referring to anything in the record that might arguably support the appeal."¹ McCoy v. Court of Appeals of Wisconsin, 486 U.S. 429, 437-39, 108 S.Ct. 1895, 100 L.Ed.2d 440, 452-54 (1988) (quoting Anders, 386 U.S. at 744). An appeal is without merit if it has no basis in law or fact. McCoy, 486 U.S. at 438 n.10.

Before reaching a conclusion that the appeal is without merit, counsel is required to master the trial record, thoroughly research the law, and exercise judgment in identifying possible grounds for appeal. Id. "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. "[I]f done correctly, Anders briefs are more difficult and time-consuming than ordinary appellate briefs." United States v. Wagner, 158 F.3d 901, 902 (5th Cir. 1998). If after thoroughly reviewing the record and researching the law, the attorney is able to find only arguments that cannot conceivably persuade the appellate court that the trial court's ruling was wrong and that the appellant was harmed, then the appeal should be considered frivolous. High v. State, 573 S.W.2d 807, 813 (Tex. Crim. App. [Panel Op.] 1978); see also McCoy, 486 U.S. at 436; Taulung v. State, 979 S.W.2d 854, 856-57 (Tex. App.Waco 1998, no pet.).

Texas courts have adopted the framework outlined in Anders and its progeny by requiring an appointed attorney who concludes that his client's appeal is without merit to (1) file a motion to withdraw in the court of appeals; (2) file an Anders brief in support of the motion (3) send his client a copy of the brief; (4) inform his client of his right to file a pro se response; and (5) inform his client of his right to review the record and of the procedures for obtaining a copy of the record.² Johnson v. State, 885 S.W.2d 641, 645-46 (Tex. App.Waco 1994, pet. ref'd); see also Bruns v. State, 924 S.W.2d 176, 177 n.1 (Tex. App.San Antonio 1996, no pet.); Mays v. State, 904 S.W.2d 920, 923 (Tex. App.-Fort Worth 1995, no pet.). The attorney must satisfy the appellate court that he has fulfilled the latter three requirements. Johnson, 885 S.W.2d at 646. The appellant then has the opportunity to respond.³, ⁴ Stafford v. State, 813 S.W.2d 503, 510 (Tex. Crim. App. 1991).

Texas courts require that an Anders brief reflect a professional evaluation of the record and a demonstration that there are no arguable grounds for appeal. High, 573 S.W.2d at 812. As such, the brief must refer to anything in the record that might arguably support the appeal, with citations to the record and legal authority. Id. at 811; Stafford, 813 S.W.2d at 510 n.3. In so doing, counsel must

[D]iscuss 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.

High, 573 S.W.2d at 813; see also Stafford, 813 S.W.2d at 510 n.3.⁵

When an appellate court receives an Anders brief, it faces two interrelated tasks: (1) ensuring that the attorney has provided the client with a diligent and thorough search of the record, and (2) ensuring that the appeal is indeed without merit. McCoy, 486 U.S. at 442. Thus, we are required to ensure that the attorney's brief satisfies the formal requirements of an Anders brief as outlined above. Johnson, 885 S.W.2d at 647. We are also required to conduct our own examination of the record to determine if the appeal is without merit. Id. We cannot grant a motion to withdraw before we make our own determination that the appeal is indeed without merit. Penson, 488 U.S. at 82-83.

If after reviewing the record, the Anders brief, and any pro se response, we agree with counsel that the appeal is without merit, we may grant counsel's motion to withdraw.⁶ Stafford, 813 S.W.2d at 511; Wilson v. State, 955 S.W.2d 693, 698 (Tex. App.Waco 1997, no pet.) (modifying Johnson, 885 S.W.2d at 647 & n.3). The appellant has not lost his right to an appeal; he has lost his right to have an attorney represent him on appeal. McCoy, 486 U.S. at 439 n.13.

Little has been written concerning the degree of scrutiny an appellate court must use in performing its independent review of the record. United States v. Wagner, 103 F.3d 551, 552 (7th Cir. 1996). The Seventh Circuit Court of Appeals has concluded that as long as the Anders brief is adequate on its face and discusses the issues that the type of case the brief is addressing might be expected to involve, the appellate court should confine its review to those portions of the record that relate to the issues discussed in the Anders brief. Id. at 553. The Seventh Circuit reasoned that combing the record for possible nonfrivolous issues which the lawyer and the appellant both overlooked would convert the court into the appellant's lawyer. Id. at 552.

On the surface, the Seventh Circuit's rationale does not clearly comport with Anders's requirement that the appellate court conduct "a full examination of all the proceedings, to decide whether the case is wholly frivolous." Anders, 386 U.S. at 744; see also Penson, 488 U.S. at 82-83. The Seventh Circuit justified its position with the observation that the Anders requirement of a full examination of all the proceedings was made in cases in which the Anders brief was inadequate on its face. Wagner, 103 F.3d at 552-53. Such reasoning ignores the fact that, in Anders, the Supreme Court articulated the requirement of "a full examination of all the proceedings" in section three of the opinion, where it outlined the procedure for protecting an indigent defendant's right to counsel on appeal. Anders, 386 U.S. at 744.

Nevertheless, the Supreme Court has subsequently made it clear that the procedure it outlined in section three of Anders is "merely one method of satisfying the requirements of the Constitution for indigent criminal appeals." Robbins, 528 U.S. at 276. Seen in this light, the Seventh Circuit's reasoning in Wagner is persuasive. We have a supervisory role in ensuring that an indigent appellant has the benefit of counsel on appeal, but we are not required to act as the appellant's advocate. Randle v. State, 760 S.W.2d 30, 32 (Tex. App.Houston [1st Dist.] 1988, no pet.). Were we to scour the record for any possible error, we would be affording the indigent appellant whose attorney files an Anders brief more protection than is afforded a nonindigent appellant or an indigent appellant whose attorney files a brief on merits. Wagner, 103 F.3d at 552; see also Martha C. Warner, Anders in the Fifty States: Some Appellants' Equal Protection is More Equal Than Others, 23 Fla. St. U. L. Rev. 625, 642-43 (1996). We would also be draining scarce judicial resources from other appeals of equal or greater merit. See Robbins, 528 U.S. at 282.

Generally, an Anders brief can exhibit two types of deficiencies. First, the brief may be deficient as to form. A...