Opinion
05-23-00089-CR
01-24-2024
ESTABAN GARCIA, Appellant v. THE STATE OF TEXAS, Appellee
Do Not Publish TEX. R. APP. P. 47.2(b)
On Appeal from the 366th Judicial District Court Collin County, Texas Trial Court Cause No. 366-83445-2016.
Before Partida-Kipness, Pedersen, III, and Garcia, Justices.
MEMORANDUM OPINION
ROBBIE PARTIDA-KIPNESS, JUSTICE.
In this criminal case, appellant's appointed counsel has filed a motion to withdraw as counsel, supported by an Anders brief. We conclude the Anders brief is deficient. We grant counsel's motion to withdraw but strike the Anders brief and remand for appointment of new appellate counsel to represent appellant.
Anders v. California, 386 U.S. 738, 744 (1967).
BACKGROUND
In 2018, a jury convicted appellant Estaban Garcia of illegal dumping in violation of TEX. HEALTH &SAFETY CODE § 365.012(G)(2). His two-year sentence was probated. The judgment of conviction was entered on January 10, 2018. On direct appeal, appellant challenged the sufficiency of the evidence to support his conviction. This Court affirmed his conviction. Garcia v. State, No. 05-18-00133-CR, 2019 WL 4050991 (Tex. App.-Dallas March 27, 2019, pet. ref'd) (mem. op., not designated for publication). Our mandate issued October 16, 2019. Garcia filed a new notice of appeal on December 2, 2019, in which he sought to again appeal the trial court's January 10, 2018 judgment. This Court dismissed the second appeal for want of jurisdiction. Garcia v. State, No. 05-19-01483-CR, 2019 WL 6728377, at *1 (Tex. App.-Dallas Dec. 11, 2019, no pet.) (mem. op., not designated for publication). The mandate in the second appeal issued February 20, 2020.
On October 13, 2021, the State filed a motion to revoke community supervision based on eight alleged violations of the community supervision order. The alleged violations of the terms of community supervision occurred between February 10, 2021, and September 2021, and included allegations Garcia committed a new illegal dumping offense on February 23, 2021, and Garcia failed to clean up the property, pay the monthly supervision fee, submit to two urinalysis tests, reimburse Collin County $50 for the cost of urinalysis testing, report as scheduled by the supervision officer for six months, and participate in and complete a cognitive program. The trial court executed a Capias for Probation Revocation-In Felony Court on October 14, 2021. The capias was executed on December 18, 2021.
Garcia pled not true to the State's allegations. The trial court held an evidentiary hearing on the revocation motion on January 6, 2023. Garcia, his probation officer, Lois Johnson, and criminal investigator Bryan Hardin of the Collin County Sheriff's Office testified at the revocation hearing. After the close of evidence and closing arguments, the trial court made a verbal finding that Garcia violated the terms of community supervision by:
• Committing a new illegal dumping offense on February 23, 2021;
• Failing to clean up the property;
• Failing to pay the monthly supervision fee;
• Failing to report as scheduled by the supervision officer for the months of April, May, June, July, and August 2021; and
• Failing to participate in and complete a cognitive program.
Those violations corresponded with the State's violation numbers 1, 2, 3, 7, and 8.
The trial court revoked Garcia's community supervision and sentenced Garcia to two years in the State Jail with credit for time served of eleven days. On January 11, 2023, the trial court entered its Judgment Revoking Community Supervision and granted the motion to withdraw filed by Garcia's trial counsel. The trial court later appointed Garcia appellate counsel. In this Court, Garcia's appellate counsel filed an Anders brief and motion to withdraw as counsel. Garcia did not file a pro se response, and the State has not filed a brief.
An Anders brief is a brief filed in support of an appointed attorney's motion to withdraw from an appeal that the attorney has concluded, after conscientious examination of the entire record, is a frivolous appeal. Anders, 386 U.S. at 744.
APPLICABLE LAW
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. Id. at 915. This "Anders brief" must satisfy the appellate court that the appointed attorney's motion to withdraw is based on a conscientious and thorough review of both the record and the law. Id.
Underlying the Anders procedure is the constitutional requirement of substantial equality and fair process, which can only be attained if appellate counsel acts in the role of an active advocate on behalf of his client. See Anders, 386 U.S. at 744. "Ultimately, an appropriate Anders brief provides the court of appeals with an assurance of integrity in the criminal proceedings in the trial courts that the court of appeals supervises." Choice v. State, No. 05-19-00178-CR, 2020 WL 3166743, at *1 (Tex. App.-Dallas June 15, 2020, no pet.) (mem. op., not designated for publication).
To that end, an Anders brief must "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." High v. State, 573 S.W.2d 807, 813 (Tex. Crim. App. 1978). "An Anders brief must 'contain a professional evaluation of the record demonstrating why, in effect, there are no arguable grounds to be advanced.'" In re N.F.M., 582 S.W.3d 539, 544 (Tex. App.-San Antonio 2018, no pet.) (quoting High, 573 S.W.2d at 812). An Anders brief must also "demonstrate that counsel has conscientiously examined the record and determined that the appeal is so frivolous that the appellant is not entitled to counsel on appeal. A proper Anders brief therefore must contain references to the record, citations to authority, and legal analysis." Id. at 541-42 (quoting Nichols v. State, 954 S.W.2d 83, 85 (Tex. App.-San Antonio 1997, order) (per curiam)). The Anders brief must provide the appellate court "with a roadmap for their review of the record because the court itself must be assured that the attorney has made a legally correct determination that the appeal is frivolous." In re Schulman, 252 S.W.3d 403, 407 (Tex. Crim. App. 2008).
At a minimum, an Anders brief must show counsel analyzed the validity of the indictment, the sufficiency of the evidence, the admissibility of the evidence of appellant's guilt, the validity of the punishment assessed, and the effectiveness of trial counsel. Jeffery v. State, 903 S.W.2d 776, 779 (Tex. App.-Dallas 1995, no pet.). Analysis requires counsel cite and discuss legal authority supporting counsel's conclusions. See Stafford v. State, 813 S.W.2d 503, 510 n. 3 (Tex.Crim.App.1991); Johnson v. State, 885 S.W.2d 641, 646 (Tex. App.-Waco 1994, pet. ref'd); see also Anders, 386 U.S. at 745 (explaining an Anders brief assists the court's review "because of the ready references not only to the record, but also to the legal authorities as furnished [the reviewing court] by counsel"). This Court has cautioned we will "strictly enforce the requirements of Anders" by striking any brief that fails to comply. Jeffery, 903 S.W.2d at 779.
When filing an Anders brief, the appointed attorney must also fulfill the following functions:
• Notify his client of the motion to withdraw and the accompanying Anders brief, providing him a copy of each;
• Inform him of his right to file a pro se response and of his right to review the record preparatory to filing that response;
• Inform him of his pro se right to seek discretionary review should the court of appeals declare his appeal frivolous; and
• 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.Kelly v. State, 436 S.W.3d 313, 319-20 (Tex. Crim. App. 2014).
When we receive an Anders brief, we conduct our own independent review of the record. English v. State, No. 05-20-01105-CR, 2021 WL 5002425, at *1-2 (Tex. App.-Dallas Oct. 28, 2021, no pet.) (mem. op., not designated for publication). We will grant counsel's motion to withdraw and affirm the trial court's judgment if we conclude (1) appellate counsel has exercised professional diligence in evaluating the record for error and (2) the appeal is frivolous. Id. However, if we conclude the Anders brief is deficient, we will strike the Anders brief and either order appointed counsel to file a new brief or abate the appeal and return the case to the trial court for the appointment of new counsel. Arevalos, 606 S.W.3d at 915-16 &n.4.
An Anders brief can suffer from a deficiency of form or a deficiency of substance. Arevalos, 606 S.W.3d at 916, n.4. Deficiencies of form include technical violations of the Anders requirements, such as failing to cite the record or legal authority, or the failure to discuss issues appearing prominently in the record, such as rulings on objections at trial. Id. (first citing Wilson v. State, 40 S.W.3d 192, 198200 (Tex. App.-Texarkana 2001, order) (finding deficiencies of form in an Anders brief where appointed counsel failed to discuss the admission of evidence over objection), and then citing In re N.F.M., 582 S.W.3d at 545-46 (ordering an attorney to re-brief where the Anders brief failed to address "the numerous, overruled evidentiary objections at trial")). Deficiencies of substance call into question appointed counsel's conclusion the appeal is without merit. Id. (citing Wilson, 40 S.W.3d at 199). "Our determination as to whether the form of an Anders brief is sufficient is an inquiry legally distinct from our determination as to whether appointed counsel has correctly concluded the appeal is wholly frivolous." Id. (citing In re N.F.M., 582 S.W.3d at 546).
ANALYSIS
The Anders brief filed in this case sets out the evidence adduced at the revocation hearing, concludes there are no non-frivolous issues for appellate review, and discusses the sufficiency of the evidence to revoke community supervision and the validity of the punishment assessed. Nonetheless, we conclude the Anders brief is deficient because it does not address the trial court's evidentiary rulings at the revocation hearing or the effectiveness of trial counsel and does not establish appellate counsel fulfilled all duties owed to Garcia. The Anders brief also fails to discuss all potentially arguable issues.
First, the Anders brief is deficient because it does not address the trial court's evidentiary rulings at the revocation hearing. When appellate counsel fails to identify any objections in the record and discuss why the trial court's ruling was correct or why the appellant was not harmed by the ruling, we are left with little or no confidence in counsel's conclusion the appeal is frivolous. See Montano v. State, No. 05-19-00463-CR, 2020 WL 1283919, at *2 (Tex. App.-Dallas Mar. 18, 2020, no pet.) (mem. op., not designated for publication). Here, Garcia's trial counsel objected to the admission of State's Exhibits 13, 14, and 15, which were photographs of trash and other items in Garcia's yard. Trial counsel argued the exhibits should not be admitted because they did not show which part of the property was depicted in the photos. These objections went to trial counsel's argument revocation was improper because Garcia cleaned up portions of the property and placed a fence around some of the property to hide the items in the yard. The trial court overruled the objection. When the trial court overrules an objection, error is preserved for appellate review. See TEX. R. APP. P. 33.1(a). Yet, Garcia's appellate attorney does not identify or describe this objection, nor does she discuss why the trial court's ruling on this objection was either correct or not harmful to Garcia. Consequently, we cannot agree with counsel's determination the appeal is wholly frivolous. See High, 573 S.W.2d at 813 (holding an Anders brief filed in a contested case must describe any objections raised and ruled on during trial and "discuss either why the trial court's ruling was correct or why the appellant was not harmed by the ruling of the court"); see also Crowe v. State, 595 S.W.3d 317, 320 (Tex. App.-Dallas 2020, no pet.) (striking Anders brief that failed to identify or describe any objections, or why the trial court's rulings were either correct or not harmful to appellant). As we noted in Crowe, appellate counsel's failure "to discuss this issue in the brief filed shows that she failed to make a thorough and professional evaluation of the record." Crowe, 595 S.W.3d at 320 (first citing Anders, 386 U.S. at 744, and then citing Jeffery, 903 S.W.2d at 780). "If appellant's appointed attorney missed such an obvious issue, we cannot assume [she] would have caught other, perhaps more subtle, issues." Id. We view such a failure as evidence counsel failed to make a thorough and professional evaluation of the record. See id.
Second, the Anders brief is deficient because it does not address the effectiveness of trial counsel. One of the issues that must be researched and analyzed in an Anders brief is the effectiveness of trial counsel. Jeffery, 903 S.W.2d at 779; Sam v. State, 467 S.W.3d 685, 688 (Tex. App.-Houston [14th Dist.] 2015, no pet.) ("The effectiveness of trial counsel is one of the issues that must be researched and analyzed in an Anders brief.") (citing Jeffrey). Because counsel did not address the effectiveness of trial counsel before concluding the appeal was frivolous, we must conclude counsel failed to conduct a conscientious examination of the record. See, e.g., Lovato v. State, No. 05-93-00476-CR, 1999 WL 38209, at *1 (Tex. App.- Dallas Jan. 29, 1999, no pet.) (mem. op., not designated for publication) (per curiam) (striking Anders brief because counsel failed to review complete reporter's record and failed to address the effectiveness of appellant's trial counsel or the validity of the punishments assessed); see also Wallace v. State, No. 05-97-00878-CR, 1998 WL 834793, at *1 (Tex. App.-Dallas Dec. 4, 1998, no pet.) (mem. op., not designated for publication) (striking brief that failed to meet requirements of Jeffrey).
Third, the Anders brief does not confirm appellate counsel provided Garcia all required notices. See Kelly, 436 S.W.3d at 319-20. In the motion to withdraw as counsel, Garcia's counsel states she notified Garcia "(1) of his right to respond to the Anders brief within 30 days of filing of the brief; (2) of his right to seek pro se access to the Record in preparing his response; [and] (3) of his right to seek a pro se Petition for Discretionary Review in the Court of Criminal Appeals." Counsel does not indicate in the motion or in any filings whether she notified Garcia of the motion to withdraw, provided Garcia with copies of the Anders brief and motion to withdraw, or took "concrete measures to initiate and facilitate the process of actuating [Garcia's] right to review the appellate record," if Garcia wishes to review the record. The Anders brief, therefore, also fails to show appellate counsel fulfilled the additional functions she was required to perform to ensure Garcia's notification of these proceedings and facilitation of his review of the appellate record. See Kelly. 436 S.W.3d at 319-20 (setting out four additional functions appellate counsel must perform in Anders proceedings).
Finally, without reaching the merits of this appeal, we conclude at least one arguable issue exists. Although an issue may not be winnable, it may nonetheless be arguable such that the appeal is not wholly frivolous. See Alvarado v. State, No. 02-19-00401-CR, 2021 WL 5132530, at *2 (Tex. App.-Fort Worth Nov. 4, 2021, pet. ref'd) (mem. op., not designated for publication) (some counsel may improperly file an Anders brief by "blur[ring] the line between a winnable ground and an arguable or potentially plausible ground."); see also McCoy v. Ct. of App. of Wis., Dist. 1, 486 U.S. 429, 444 (1988) ("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."). Arguments are only frivolous if they "cannot conceivably persuade the court." McCoy, 486 U.S. at 436. "[A]ny point which is 'arguable on [the] merits' is, by definition, not frivolous." Johnson, 885 S.W.2d at 645 (quoting Anders, 386 U.S. at 744) (abrogated on other grounds by Sowels v. State, 45 S.W.3d 690 (Tex. App.-Waco 2001, no pet.), and holding modified on other grounds by Wilson v. State, 955 S.W.2d 693 (Tex. App.-Waco 1997, no pet.))).
Here, the State filed its motion to revoke community supervision on October 13, 2021, which was two days before the supervision period expired. The hearing on the motion to revoke, however, did not occur until January 6, 2023, nearly fourteen months later. These facts may present an arguable speedy trial claim. See, e.g., Guo v. State, No. 05-13-00371-CR, 2014 WL 2943064, at *2 (Tex. App.-Dallas May 12, 2014, no pet.) (mem. op., not designated for publication) ("a defendant's right to a speedy trial attaches when the motion to revoke is filed"); see also Shaw v. State, 117 S.W.3d 883, 889 (Tex. Crim. App. 2003) (speedy trial inquiry not triggered until delay is "unreasonable," that is, until delay between arrest or formal accusation and hearing approaches one year); but see Dingler v. State, No. 05-03-01552-CR, 2005 WL 1039969, at *6 (Tex. App.-Dallas May 5, 2005, no pet.) (mem. op., not designated for publication) (speedy trial right not implicated "because the fivemonth period between the filing of the revocation motion and hearing was less than the eight-to-nine month time frame that generally triggers a speedy trial inquiry."). We recognize other factors may impact the plausibility of a speedy trial argument in this case, including issues of preservation of error. However, the delay between the filing of the motion to revoke and the hearing presents an obvious point for review and consideration by appellate counsel.
CONCLUSION
"Anders briefs should be an arduous option for the criminal appellate practitioner." Limauro v. State, 675 S.W.3d 368, 375 (Tex. App.-Dallas 2023, no pet.). Although we appreciate counsel's effort here, the brief falls short. Accordingly, we grant counsel's motion to withdraw and strike the Anders brief filed by counsel. We remove this appeal from the submission docket, abate the appeal, and remand to the trial court for appointment of new appellate counsel to represent appellant. New appellate counsel should investigate the record and either (1) file a brief that addresses arguable issues found in the record or (2) if no such arguable issues exist, file an Anders brief that complies with the requirements of Anders and its progeny.