Opinion
NO. 12-16-00073-CR
04-28-2017
RICHARD PAUL KAY, APPELLANT v. THE STATE OF TEXAS, APPELLEE
APPEAL FROM THE 159TH JUDICIAL DISTRICT COURT ANGELINA COUNTY , TEXAS
ORDER OF ABATEMENT
Richard Paul Kay appeals his conviction for evading arrest or detention. Appellant's counsel filed a brief asserting compliance with Anders v. California , 386 U.S. 738, 87 S. Ct. 1396, 18 L. Ed. 2d 493 (1967). We grant counsel's motion to withdraw, abate the appeal, and remand the cause for appointment of new counsel.
BACKGROUND
Appellant was charged by indictment with aggravated assault on a public servant and evading arrest or detention. He pleaded "guilty" to evading arrest and "not guilty" to aggravated assault. The matter proceeded to a jury trial, and the jury found Appellant "not guilty" of aggravated assault. The jury assessed Appellant's punishment for evading arrest at imprisonment for ten years and a $5,000 fine. This appeal followed.
ANDERS BRIEFS
Appellant's appointed counsel has filed a motion to withdraw and a brief stating that this appeal is frivolous. Because counsel asserts compliance with Anders v. California , we must determine whether such compliance has been achieved.
If an appellant's attorney believes his appeal is frivolous, he must withdraw from representing him. Jeffery v. State , 903 S.W.2d 776, 779 (Tex. App.-Dallas 1995, no pet.) (citing McCoy v. Ct. App. of Wis., Dist. 1, 486 U.S. 429, 437, 108 S. Ct. 1895, 1901, 9 L. Ed. 2d 811 (1963); Anders , 386 U.S. at 744, 87 S. Ct. at 1400). To withdraw from representation, the appointed attorney must file a motion to withdraw accompanied by a brief showing the appellate court that the appeal is frivolous. Jeffery , 903 S.W.2d at 779 (citing McCoy , 486 U.S. at 439, 108 S. Ct. at 1902; Anders , 386 U.S. at 744, 87 S. Ct. at 1400). This brief in support of the motion to withdraw is the document now commonly called an " Anders " brief. Jeffery , 903 S.W.2d at 779. Counsel's Duties
The procedural safeguards of Anders and its progeny apply to counsel appointed to represent an indigent appellant. They do not apply to retained attorneys. Jeffery , 903 S.W.2d at 779 n.3.
Determining that an appeal is "frivolous" is not a conclusion to be reached lightly by counsel. Johnson v. State , 885 S.W.2d 641, 645 (Tex. App.-Waco 1994, pet. ref'd), modified on other grounds, Wilson v . State , 955 S.W.2d 693 (Tex. App.-Waco 1997, no pet.). As described by the United States Supreme Court, appellate counsel has the duty to "master the trial record, thoroughly research the law, and exercise judgment in identifying the arguments that may be advanced on appeal." McCoy , 486 U.S. at 438, 108 S. Ct. at 1902. "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., 486 U.S. at 444, 108 S. Ct. at 1905. If the only theories that the attorney can discover after this conscientious review of the record and the law are "arguments that cannot conceivably persuade the court," then the appeal should be considered frivolous. Id., 486 U.S. at 436, 108 S. Ct. at 1901. "However, we stress that any 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, 87 S. Ct. at 1400).
As applied in Texas, the ultimate test of an Anders brief is whether it contains a "professional evaluation of the record demonstrating why, in effect, there are no arguable grounds to be advanced." Johnson , 885 S.W.2d at 646 (quoting High v. State , 573 S.W.2d 807, 812 (Tex. Crim. App. 1978)); see Stafford v . State , 813 S.W.2d 503, 510 n.3 (Tex. Crim. App. 1991). In Texas, an Anders brief need not specifically advance "arguable" issues if counsel finds none, but it must provide record references to the facts and procedural history and set out pertinent legal authorities. In re Schulman , 252 S.W.3d 403, 406 n.9 (Tex. Crim. App. 2008) (orig. proceeding). However, counsel must refer to anything in the record that might arguably support the appeal. See Anders , 386 U.S. at 744, 87 S. Ct. at 1400; Schulman , 252 S.W.3d at 406 n.9. Further "[t]his court will not accept [ Anders ] 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." Johnson , 885 S.W.2d at 646 (quoting High , 573 S.W.2d at 813). Appellate Review
To satisfy federal constitutional concerns, a court of appeals must be satisfied "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." Id. at 647 (quoting McCoy , 486 U.S. at 442, 108 S. Ct. at 1904). This task requires that the court examine counsel's motion to withdraw and brief for compliance with the rules set forth above. See Johnson , 885 S.W.2d at 647. A lack of such compliance renders a brief deficient as to form, in which case the court should give counsel an opportunity to file an amended brief addressing the deficiencies. See Banks v . State , 341 S.W.3d 428, 431-32 (Tex. App.-Houston [1st Dist.] 2009, no pet.).
Once a court of appeals is satisfied that counsel has discharged his constitutional duty, the court must determine if the appeal is wholly frivolous. Johnson , 885 S.W.2d at 647. Having conducted such a review, "the court of appeals will either agree the appeal is wholly frivolous, grant the attorney's motion to withdraw, and dismiss the appeal, or it will determine that there may be plausible grounds for appeal." Schulman , 252 S.W.3d at 409. A determination that there may be plausible grounds for appeal renders the brief deficient as to substance. Wilson v. State , 40 S.W.3d 192, 199 (Tex. App.-Texarkana 2001, no pet.). In that case, the court must grant counsel's motion to withdraw and abate the case to the trial court for appointment of new appellate counsel to present the issues identified by the court, along with any other issues that might support the appeal. Id.; see also Stafford , 813 S.W.2d at 511. Discussion
Based on our review, we conclude that counsel's brief complies with the requirements of Anders and its progeny. However, in reviewing the record, we determined that there may be plausible grounds for appeal. Before accepting a guilty plea, a trial court is required to admonish the defendant that if he is not a United States citizen, his guilty plea may result in deportation, exclusion from admission, or denial of naturalization. See TEX. CODE CRIM. PROC. ANN. art. 26.13(a)(4) (West Supp. 2016). When the trial court fails to so admonish the defendant, a silent record on the defendant's citizenship status establishes harm by the standard of Texas Rule of Appellate Procedure 44.2(b). VanNortrick v. State , 227 S.W.3d 706, 714 (Tex. Crim. App. 2007). In this case, the record shows that the trial court failed to admonish Appellant, either orally or in writing, of the immigration consequences of his plea. Further, the record is silent on Appellant's citizenship status.
Because there may be plausible grounds for appeal, we conclude that counsel's brief is deficient as to substance. See Wilson , 40 S.W.3d at 199; see also Gist v . State , No. 07-08-0030-CR, 2009 WL 1577968, at *2 (Tex. App.—Amarillo June 5, 2009, no pet.) (mem. op., not designated for publication) (abating for appointment of new counsel when evidence did not show admonishment of immigration consequences of guilty plea). Therefore, we must grant counsel's motion to withdraw and abate the case to the trial court for appointment of new appellate counsel to present the issue we identified, along with any other issues that might support the appeal. See Wilson , 40 S.W.3d at 199; Stafford , 813 S.W.2d at 511.
Accordingly,
It is ORDERED that this appeal be abated , that the case is remanded to the trial court, and that the trial court shall appoint new counsel to represent Appellant on appeal. The trial court shall furnish the name, address, telephone number, and state bar number of new counsel to the clerk of this Court immediately after the trial court's appointment of new counsel. Finally, the trial court shall cause its order appointing counsel to be included in a supplemental clerk's record, which shall be filed with the clerk of this Court within ten days after the date of the trial court's order.
It is FURTHER ORDERED that the appeal is administratively removed from this Court's docket until further order of this Court.
It is FINALLY ORDERED that the newly appointed counsel's brief shall address the issue this court has identified and any other issues counsel deems meritorious, and that counsel's brief shall be due forty-five days from the date of counsel's appointment. All other appellate deadlines shall be in accordance with the Texas Rules of Appellate Procedure.
BRIAN HOYLE
Justice Order entered April 28, 2017.
Panel consisted of Worthen, C.J., Hoyle, J., and Neeley, J.