In Arevalos v. State, we stated, "Of course, in order to evaluate which option to exercise, this Court must have the benefit of a brief that fully complies with the requirements of Anders." 606 S.W.3d 912, 916 (Tex. App.-Dallas 2020, order), subsequent proceeding, No. 05-19-00466-CR, 2020 WL 5087778
In Anders, the Supreme Court outlined a procedure to ensure an indigent criminal defendant's right to counsel on appeal is honored when his or her appointed attorney concludes the appeal is without merit. See Arevalos v. State, 606 S.W.3d 912, 914-15 (Tex. App.-Dallas 2020, no pet.). If the attorney concludes the appeal is wholly frivolous, he or she should request permission to withdraw, simultaneously filing a brief that refers to anything in the record that might arguably support the appeal.
See High v. State, 573 S.W.2d 807, 811 (Tex. Crim. App. [Panel Op.] 1978); Arevalos v. State, 606 S.W.3d 912, 916 (Tex. App.-Dallas 2020, order), subsequent proceeding, No. 05-19-00466-CR, 2020 WL 5087778 (Tex. App.-Dallas Aug. 28, 2020, order) (mem. op., not designated for publication), disp. on merits, 2021 WL 2948582 (Tex. App.-Dallas June 30, 2021, no pet.) (mem. op., not designated for publication).
In Anders v. California, 386 U.S. 738 (1967), the Supreme Court outlined a procedure to ensure an indigent criminal defendant's right to counsel on appeal is honored when his or her appointed attorney concludes the appeal is without merit. Arevalos v. State, 606 S.W.3d 912, 914-15 (Tex. App.-Dallas 2020, no pet.). If the attorney concludes the appeal is wholly frivolous, he or she should request permission to withdraw, simultaneously filing a brief that refers to anything in the record that might arguably support the appeal.
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).
If done correctly, an Anders brief can be more difficult and time-consuming to prepare than an ordinary appellate brief. Arrevalos v. State, 606 S.W.3d 912, 915-16 (Tex. App-Dallas 2020, no pet.) (citing Banks v. State, 341 S.W.3d 428, 431 (Tex. App.-Houston [1st Dist.] 2009, order); Wilson v. State, 40 S.W.3d 192, 196 (Tex. App.- Texarkana 2001, order.); see also United States v. Wagner, 158 F.3d 901, 902 (5th Cir. 1998).
In Anders, the Supreme Court outlined a procedure to ensure that an indigent criminal defendant's right to counsel on appeal is honored when his or her appointed attorney concludes that the appeal is without merit. See Arevalos v. State, 606 S.W.3d 912, 914-15 (Tex. App.-Dallas 2020, order), subsequent proceeding, No. 05-19-00466-CR, 2020 WL 5087778 (Tex. App.-Dallas Aug. 28, 2020, order) (mem. op., not designated for publication), disp. on merits, 2021 WL 2948582 (Tex. App.-Dallas June 30, 2021, no pet.) (mem. op., not designated for publication).
The brief presents a professional evaluation of the record showing why, in effect, there are no arguable grounds to advance. See Gainous v. State, 436 S.W.2d 137, 138 (Tex. Crim. App. 1969); Arevalos v. State, 606 S.W.3d 912, 915-16 (Tex. App.—Dallas 2020, no pet. h.). Appellant's counsel filed a separate motion to withdraw.
We found the original Anders brief did not meet all of the requirements of Anders. Arevalos v. State, No. 05-19-00466-CR, 2020 WL 4199062, at *3 (Tex. App.—Dallas July 22, 2020, order) (not yet published) (citing High v. State, 573 S.W.2d 807, 811 (Tex. Crim. App. [Panel Op.] 1978)). As a result, we struck the brief filed and ordered appointed counsel to either (1) file a brief that addresses arguable issues found within the record, or (2) if, after a thorough and professional review of the record, counsel identifies no such arguable issues, file an Anders brief that complies with the Anders requirements.Id.
If we conclude, after conducting an independent review, that "appellate counsel has exercised professional diligence in assaying the record for error" and agree that the appeal is frivolous, we should affirm the trial court's judgment. Arrevalos v. State, 606 S.W.3d 912, 915 (Tex. App-Dallas 2020, no pet.). If, however, we conclude either that appellate counsel has not adequately discharged the constitutional duty to review the record for any arguable error, or that the appeal is not wholly frivolous, we may order appellate counsel to provide new briefing or we may abate the appeal and return the cause to the trial court for the appointment of new appellate counsel.