Opinion
01-23-00285-CR
11-02-2023
Benjamin Nguyen Eustachon v. The State of Texas
Trial court: 182nd District Court of Harris County Trial court case number: 1689374
Panel consists of Goodman, Rivas-Molloy, and Guerra Justices.
ORDER
Veronica Rivas-Molloy, Judge.
On July 20, 2023, Appellant's appointed counsel, Mandy Miller, filed an Anders brief concluding the above-referenced appeal lacks merit. See Anders v. California, 386 U.S. 738, 744 (1967). We find the brief filed on Appellant's behalf deficient.
Appellant pleaded guilty to the first-degree felony offense of aggregate theft in an amount greater than or equal to $300,000. See Tex. Penal Code §§ 31.03(a), (e)(7). After a pre-sentencing hearing, the trial court signed a judgment on April 12, 2023 and sentenced Appellant to eleven years in the Correctional Institutions Division of the Texas Department of Criminal Justice.
Although the reporter's record contains a transcript of the pre-sentencing hearing and the exhibits admitted during the hearing, the Anders brief provides no discussion of the testimony or evidence elicited at the hearing. See High v. State, 573 S.W.2d 807, 812 (Tex. Crim. App. 1978). In addition, the brief lacks legal authority in support of its conclusion that the appeal lacks merit. See Arevalos v. State, 606 S.W.3d 912, 916 (Tex. App.-Dallas 2020, no pet.) (noting that Texas courts require an Anders brief to cite to the record and legal authority).
The clerk's record also contains an order signed September 14, 2022 by a Harris County hearing officer that is entitled "Early Identification of Suspected Mental Illness or Intellectual Disability Tex. Code Crim. Proc. Art. 16.22." In addition, on September 15, 2022, Appellant's counsel filed a "Suggestion that the Defendant May be Incompetent to Stand Trial." The trial court's docket appears to indicate the court received competency evaluations on November 9, 2022 and November 15, 2022. Notwithstanding, the Anders brief does not address Appellant's competency to stand trial or these related pleadings and orders. See Labar v. State, No. 02-20-00050-CR, 2021 WL 4205057, at *2 (Tex. App.-Fort Worth Sept. 16, 2021, no pet.) (mem. op. and order, not designated for publication) (striking Anders brief that did not address appellant's competency to stand trial, among other things, even though clerk's record reflected competency proceedings).
By separate order, we have ordered the trial court to supplement the clerk's record to include materials related to the mental health assessment ordered on September 14, 2022, the motion for competency exam and order granting the motion, both dated September 19, 2022, and the competency evaluation(s) apparently received by the trial court on November 9, 2022 and November 15, 2022.
Finally, in the Anders brief, Appellant's counsel states that Appellant "objected to two items in the PSI report but was permitted to introduce evidence that countered the alleged inaccuracies." But counsel does not discuss the objections to the evidence. See Arevalos, 606 S.W.3d at 916 (striking Anders brief, holding appellant counsel's failure to discuss objections to evidence was "evidence that counsel failed to make a thorough and professional evaluation of the record").
Given the noted omissions in the Anders brief, we cannot conclude that the brief provides a professional evaluation of the record. Counsel's brief provides no aid to Appellant or to this Court, and it fails to meet the requirements of Anders. See McCoy v. Court of Appeals of Wisc., Dist. 1, 486 U.S. 429, 442 (1988) (requiring appellate court, in addition to determining whether counsel correctly determined that appeal is frivolous, to "satisfy itself that the attorney has provided the client with a diligent and thorough search of the record for any arguable claim that might support the client's appeal"); Anders, 386 U.S. at 744-45 (requiring counsel to file brief that assists client by evaluating all potential grounds for appeal and aids Court in evaluating record); High, 573 S.W.2d at 812 (requiring "brief of counsel to contain a professional evaluation of the record demonstrating why, in effect, there are no arguable grounds to be advanced"). In High, the Court of Criminal Appeals stated that
in contested cases where "frivolous appeal" briefs are filed by court-appointed counsel the trial court should not accept . . . such 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.Id. at 813.
We strike the defective brief and order counsel to file a new Anders brief, correcting the noted deficiencies in the stricken brief and presenting a full discussion of the evidence and objections presented in the trial court, as well as Appellant's competency to stand trial. Appellant's amended brief is ordered filed no later than 30 days from the date of this order.
It is so ORDERED.