Opinion
01-24-00073-CR
08-01-2024
Gracie Ann Mata v. The State of Texas
239th District Court of Brazoria County Trial court case No: 97640-CR
ORDER OF ABATEMENTJulie Countiss, Judge
After appellant, Gracie Ann Mata, without an agreed punishment recommendation from the State, pleaded guilty to the felony offense of driving while intoxicated, third offense, the trial court assessed her punishment at ten years' confinement. Appellant then filed a notice of appeal. On April 26, 2024, appellant's court-appointed appellate counsel filed an Anders brief in which he states that "[a]fter a review of the entire record, [he] believes that the appeal in th[e] case contains no merit" and he "can find in the record no arguable points of error" to support an appeal. See Anders v. California, 386 U.S. 738, 744 (1967). While counsel's Anders brief includes a "notice to appellant of right to proceed pro se, and to obtain record on appeal," the brief does not indicate that he provided appellant with a copy of the brief. Counsel's Anders brief also does not indicate that he provided appellant with a form motion to access the appellate records. See Kelly v. State, 436 S.W.3d 313, 319-20 (Tex. Crim. App. 2014); In re Schulman, 252 S.W.3d 403, 408 (Tex. Crim. App. 2008).
On April 29, 2024, appellant's court-appointed appellate counsel filed his motion to withdraw, which does not comply with Texas Rule of Appellate Procedure 6.5. See Tex. R. App. P. 6.5 ("Withdrawal); In re Garcia, No. 03-12-00320-CR, 2013 WL 865213, at *1 (Tex. App.-Austin Feb. 28, 2013, order) (not designated for publication) (ordering appellate counsel to file motion to withdraw that complied with Texas Rule of Appellate Procedure 6.5).
A proper "Anders brief reflects the fact that the appointed attorney has adequately researched the case [and the law] before requesting to withdraw from further representation." In re Schulman, 252 S.W.3d at 407; see also Hung Le v. State, 510 S.W.3d 96, 97 (Tex. App.-Houston [1st Dist.] 2016, order). Notably, "[a]n Anders brief is appropriate only when the [appointed] attorney has mastered the record and the evidence[,] and he [has] determine[d] that there are no sustainable grounds for appeal." Hung Le, 510 S.W.3d at 97 (internal quotations omitted). Appointed counsel's Anders brief must "set[] out the attorney's due diligence, inform[] the [defendant], and provide[] a roadmap for the appellate court's review of the record." Id. (internal quotations omitted). The Anders brief must also provide the defendant with citations to the record if she wishes to exercise her right to file a pro se response. Id. at 97-98 (internal quotations omitted). "[C]ounsel's obligation to [this Court] is to assure [it] through the mechanism of an Anders brief, that, after thorough investigation and research, his request [to withdraw] is well founded." Id. at 98 (internal quotations omitted).
Here, the brief filed by appellant's appointed appellate counsel fails to satisfy these standards. By failing to provide a professional evaluation of the record, appointed counsel's brief provides no aid to appellant or to this Court. 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 v. State, 573 S.W.2d 807, 812 (Tex. Crim. App. 1978) (requiring "brief of counsel to contain a professional evaluation of the record demonstrating why, in effect, there are no arguable grounds to be advanced").
Accordingly, we strike the April 26, 2024 Anders brief filed by appointed counsel, Robert D. Miller, and grant appointed counsel's motion to withdraw. We abate the appeal and remand the case to the trial court with instructions to appoint new counsel to represent appellant on appeal and have a supplemental clerk's record containing that appointment filed in the appeal with the Clerk of this Court no later than 30 days from the date of this order. Counsel's brief will be due 30 days from the date that counsel is appointed.
We are cognizant that appointed counsel's motion to withdraw is not compliant. See Tex. R. App. P. 2, 6.5.
The appeal is abated, treated as a closed case, and removed from this Court's active docket.
It is so ORDERED.