Opinion
08-23-00128-CR
11-09-2023
ULISES MARTINEZ-GARCIA, Appellant, v. STATE OF TEXAS, Appellee.
Appeal from the 379th Judicial District Court of Bexar County, Texas (TC# 2022CR6976)
ORDER
PER CURIAM
Before the Court is Appellant's appointed counsel's purported Anders brief filed August 21, 2023, and a simultaneously filed motion to withdraw. We conclude the brief is inadequate.
Appellant was charged by indictment with the offense of aggravated assault with a deadly weapon against a public servant. Appellant pled not guilty to the charge, and the case was presented to a jury. The jury subsequently found Appellant guilty of the charge and assessed a sentence of thirteen years in prison. Appellant timely filed his notice of appeal, and the trial court appointed counsel to represent him on appeal. Appellant's counsel filed a motion to withdraw and a purported Anders brief. After being provided with a copy of counsel's brief, Appellant also filed a pro se brief.
The United States Supreme Court outlined a procedure to ensure that an indigent criminal defendant's right to effective assistance of counsel on appeal is honored when his or her appointed attorney contends an appeal lacks merit. See Anders v. California, 386 U.S. 738, 744 (1967). To that end, the Texas Court of Criminal Appeals has instructed that a proper Anders brief is one that "reflects the fact that the appointed attorney has adequately researched the case before requesting to withdraw from further representation." In re Schulman, 252 S.W.3d 403, 407 (Tex. Crim. App. 2008). That is, an Anders brief is deemed appropriate only when the attorney has "mastered the record and the evidence" and he or she has determined there "are no sustainable grounds for appeal." Banks v. State, 341 S.W.3d 428, 430 (Tex. App.-Houston [1st Dist.] 2009, no pet.). For example, a proper Anders brief should set out the attorney's due diligence, inform the client of the effort, and provide a roadmap for the appellate court's review of the record. See Schulman, 252 S.W.3d at 407; see also Smith v. Robbins, 528 U.S. 259, 281 (2000) ("Counsel's summary of the case's procedural and factual history, with citations of the record, both ensures that a trained legal eye has searched the record for arguable issues and assists the reviewing court in its own evaluation of the case."); Kelly v. State, 436 S.W.3d 313, 318 (Tex.Crim.App.2014) ("The purpose of the Anders brief is to satisfy the appellate court that the appointed counsel's motion to withdraw is, indeed, based upon a conscientious and thorough review of the law and facts[.]"). In sum, counsel's "obligation to the appellate courts is to assure them, through the mechanism of an Anders brief, that, after thorough investigation and research, his request is well founded." Schulman, 252 S.W.3d at 407.
When defense counsel files an Anders brief, we nonetheless conduct our own independent review of the record. Anders, 386 U.S. at 744; Stafford v. State, 813 S.W.2d 503, 510 n. 3 (Tex. Crim. App. 1991). If we conclude from our review that: (1) appellate counsel has exercised professional diligence in evaluating the record for error; and (2) that counsel has correctly determined the appeal is frivolous, we may grant counsel's motion to withdraw and not require it be presented in the trial court. Meza v. State, 206 S.W.3d 684, 689 (Tex. Crim. App. 2006). But if we conclude that counsel's Anders brief is formally deficient, such as by the brief failing to cite legal authority, failing to provide record references, or failing to discuss issues appearing prominently in the record, we will instead 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. Meza, 206 S.W.3d at 689; Crowe v. State, 595 S.W.3d 317, 320 (Tex. App.-Dallas 2020, no pet.).
In this appeal, counsel's Anders brief contains a background section reviewing Appellant's testimony as well as that of one other witness. But we further note the brief fails to mention or discuss testimony from five other witnesses who all testified at trial. Moreover, in the only "potential issue" presented in the brief, counsel reviews the sufficiency of the evidence to support Appellant's conviction, but he does so only by discussing Appellant's testimony alone. Furthermore, the brief does not discuss potential issues involving sufficiency of the indictment, the adverse rulings to objections made at trial, whether punishment imposed complies with applicable law, or the effective assistance of trial counsel. In fact, the record shows Appellant requested new counsel prior to the start of trial, which counsel does not discuss in the Anders brief to any extent whatsoever. Indeed, Appellant's pro se brief reveals a potential issue regarding a competency hearing, which is not included in counsel's Anders brief.
For all these reasons, we are not satisfied that counsel has adequately researched this appeal nor exercised due diligence in investigating potential error prior to requesting withdrawal from further representation. Without deciding whether there are any arguable issues on appeal, we strike appellate counsel's brief, and grant counsel's motion to withdraw. Additionally, we abate this appeal, and remand the case to the trial court with instructions to appoint new counsel to represent Appellant and ensure that a supplemental clerk's record containing that appointment is filed with the clerk of this Court within thirty (30) days of the date of this order. The order shall contain the name, address, email address, phone number, and state bar number of newly appointed appellate counsel. Furthermore, Appellant's brief will be due thirty days (30) following the appointment of new counsel. The State may file a brief in response within thirty days (30) after the filing of Appellant's brief.
IT IS SO ORDERED.