Opinion
05-23-00519-CR
08-20-2024
ALEX PERRY NEAL, Appellant v. THE STATE OF TEXAS, Appellee
On Appeal from the 296th Judicial District Court Collin County, Texas Trial Court Cause No. 296-81320-2023
ORDER
BONNIE LEE GOLDSTEIN JUSTICE
Before the Court is appellant's counsel, Hunter Biederman's, motion to withdraw supported by the Anders brief, both filed August 7, 2024. We conclude the brief is inadequate to support Mr. Biederman's motion to withdraw because it does not adequately 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, and 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. Additionally, the brief does not mention jury selection or the jury instructions in either the guilt or punishment phases of the trial. Finally, we note counsel's letter to appellant failed to meet the Court of Criminal Appeals requirements set out in In re Schulman, 252 S.W.3d 403, 408 (Tex. Crim. App. 2008).
In August 2022, in case 05-23-00519-CR, appellant was indicted for tampering with a governmental record. In April 2023, in case 05-23-00521-CR, appellant was indicted for obstruction or retaliation. The State tried the two indictments together in a single trial. The jury found appellant guilty of both offenses. Appellant subsequently hired an attorney to prosecute his appeals in both cases. Appellant's attorney filed a brief on the merits in case 05-23-00521-CR, but filed an Anders brief in case 05-23-00519-CR.
On May 30, 2024, we struck the Anders brief filed in case 05-23-00519-CR because appellant's attorney was retained. See Crowe v. State, 595 S.W.3d 317, 318 n.1 (Tex. App.-Dallas 2020, no pet.) ("The procedural safeguards established in Anders do not apply to retained counsel."). We granted the retained attorney's motion to withdraw from representing appellant in that cause. We abated the appeal for the trial court to determine whether appellant was indigent or had retained new counsel. We ordered the trial court to appoint appellant counsel if it determined he was indigent. On June 17, 2024, the trial court appointed Mr. Biederman to represent appellant.
On July 17, 2024, Mr. Biederman filed a motion to adopt the Anders brief filed by appellant's former retained attorney. We denied appellant's motion, however, because we struck that brief. We ordered Mr. Biederman to file appellant's brief on or before July 26, 2024. On July 31, 2024, we denied Mr. Biederman's motion to withdraw as counsel. We further noted he had failed to file appellant's brief which was due July 26, 2024. We ordered counsel to file appellant's brief on or before August 14, 2024. On August 7, 2024, Mr. Biederman filed an Anders brief in this case.
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 v. California, 386 U.S. 738, 744 (1967). 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 id. 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.
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). In addition to setting out an attorney's due diligence investigation on behalf of the client, the Anders brief has an additional use for an appellate court, providing it "with a roadmap for [its] 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 at 407.
Counsel's Anders brief, on page 7, states, "[t]he record shows sufficient evidence to support the jury's conviction on the charge at issue." However, counsel fails to discuss the evidence adduced at the trial or point out where pertinent testimony may be found in the record. Additionally, the brief fails to refer to pages in the record where objections were made, state the nature of the objection, discuss 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. Finally, the brief does not mention jury selection or the jury instructions in either the guilt or punishment phases of the trial. Therefore, we conclude the Anders brief does not meet the requirements of High. Accordingly, we STRIKE the August 7, 2023 Anders brief and ORDER counsel to file a new brief in support of his pending motion to withdraw within TWENTY DAYS of the date of this order. Any requests for extension of time are strongly disfavored.
Further, counsel's Anders letter to appellant contains omissions. Pursuant to In re Schulman, counsel is required to send a copy of his Anders brief to his client along with a letter informing appellant, among other things, of his right to file a pro se petition for discretionary review with the Texas Court of Criminal Appeals if we issue an opinion declaring his appeal frivolous. 252 S.W.3d at 408. Counsel has failed to inform appellant of his right to file such a petition. Further, counsel failed to inform his client how to obtain a copy of the appellate record. Counsel must inform appellant he can obtain a copy of the record by completing a motion, which counsel must include with the letter, and enclosing it and mailing to:
Mr. Ruben Morin, Clerk of the Court, Fifth District Court of Appeals at Dallas, 600 Commerce St., Second Floor, Dallas, TX, 75202.
We ORDER counsel to send appellant a certified letter informing him of his right to file a pro se petition seeking a discretionary review with the Texas Court of Criminal Appeals if we issue an opinion declaring his appeal frivolous, with an enclosed motion to obtain the appellate record. Further, we ORDER counsel to file a copy of his certified letter sent to appellant within TWENTY DAYS of the date of this order.