Opinion
01-22-00672-CR
07-11-2024
SHAUN CORY READEAUX, Appellant v. THE STATE OF TEXAS, Appellee
On Appeal from the 56th District Court Galveston County, Texas Trial Court Case No. 21-CR-1841
Panel consists of Justices Kelly, Hightower, and Guerra.
ORDER STRIKING ANDERS BRIEF
AMPARO MONIQUE GUERRA, JUDGE
Appellant Shaun Cory Readeaux filed a notice of appeal from his conviction for aggravated assault with a deadly weapon. See Tex. Penal Code § 22.02(b)(1)(A). Appellant's appointed appellate counsel has filed a motion to withdraw from the appeal, along with an Anders brief in which he opines that no valid grounds for appeal exist and that the appeal is frivolous. Appellant filed a pro se response. The State waived its opportunity to file a response brief.
See Anders v. California, 386 U.S. 738, 744 (1967).
We will strike the Anders brief and permit appointed counsel to file a new brief.
A proper Anders brief "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). An Anders brief is appropriate only when the attorney has "mastered the record and the evidence" and determined that there "are no sustainable grounds for appeal." Banks v. State, 341 S.W.3d 428, 430 (Tex. App.-Houston [1st Dist.] 2009, no pet.). "It sets out the attorney's due diligence, informs the client, and provides a roadmap for the appellate court's review of the record." Id. (citing In re 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 . . . ."). The Anders brief "also provides the client with citations to the record if he wishes to exercise his right to file a pro se brief." Banks, 341 S.W.3d at 430 (citing In re Schulman, 252 S.W.3d at 407-08). 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." In re Schulman, 252 S.W.3d at 407; see also McCoy v. Ct. of Appeals of Wis., Dist. 1, 486 U.S. 429, 439 (1988) (observing that Anders brief must demonstrate appointed lawyer has "fully performed" his duty to support his client's appeal to best of his ability). The brief filed by appellant's appointed counsel fails to satisfy these standards.
This aspect of the Anders brief is particularly important to criminal appellants in Texas because they are guaranteed the right to have assistance of counsel on direct appeal but not for postconviction habeas corpus petitions. See generally Trevino v. Thaler, 569 U.S. 413, 423-24 (2013) (discussing Texas procedures available to raise ineffective assistance of counsel claims); Ex parte Garcia, 486 S.W.3d 565, 572 (Tex. Crim. App. 2016) (Alcala, J., dissenting) ("Although Texas has provided a vehicle-an application for a writ of habeas corpus under Article 11.07 of the Code of Criminal Procedure-for presenting complaints about the effectiveness of trial counsel, the problem is that indigent defendants have no right to counsel at that juncture.").
The Anders brief in this case is ten pages long. Of those ten pages, there is a one-page statement of facts, and two pages of analysis of potential appellate issues. Addressing the sufficiency of the court's charge, counsel's brief asserts-in three sentences-that the charge sufficiently instructed the jury as to the elements of the subject offense and that there were no objections to the charge as submitted.
Appellant filed a pro se response to the Anders brief, focusing on the jury charge. Appellant argues that he was entitled to a jury instruction on (1) the presumption of reasonableness as to his use of deadly force and (2) apparent danger. Appellant correctly points out that, contrary to appellate counsel's assertions in the Anders brief, his trial counsel did object to the State's proposed jury charge and requested these two instructions. After a hearing, the trial court denied trial counsel's request as to both instructions.
One of the functions of an Anders brief is to assist the appellate court in determining that appellate counsel "in fact conducted the required detailed review of the case." Penson v. Ohio, 488 U.S. 75, 81 (1988). The Anders brief must demonstrate that the appointed lawyer has "fully performed" his duty to support his client's appeal to the best of his ability. McCoy, 486 U.S. at 439. Another function of the Anders brief is to inform the client, providing citations to the record to facilitate the filing of a pro se brief. Banks, 341 S.W.3d at 430. The Anders brief in this appeal does not serve these functions, and therefore does not demonstrate the "conscientious examination" required as a predicate to a motion to withdraw from representation on the grounds of the frivolity of the issues. Anders, 386 U.S. at 744. In this regard, the Anders brief should disclose information sufficient to satisfy the court of appeals that appointed counsel has adequately investigated the case to professionally evaluate whether there are any nonfrivolous appellate issues.
The Anders procedure is designed to protect an indigent defendant's constitutional right to counsel on direct appeal. Smith, 528 U.S. at 273 (citing Pennsylvania v. Finley, 481 U.S. 551, 555 (1987)). Accordingly, even if the court's independent review of the cold record as it stands would not identify a nonfrivolous ground for appeal, in the absence of a proper Anders brief reflecting an appropriately "conscientious examination" we could not conclude that an attorney who did perform the necessary evaluation, which necessarily transcends the sterile style of review conducted by the court, likewise would find any appeal to be frivolous. Cf. Douglas v. People of State of Cal., 372 U.S. 353, 356 (1963) ("Any real chance" indigent defendant "may have had of showing that his appeal has hidden merit is deprived him when the court decides on an ex parte examination of the record that the assistance of counsel is not required.").
Not all Anders briefing errors require appointment of new counsel. This court has previously held that counsel should be afforded the opportunity to rebrief to address the deficiencies in the brief in the event of "errors of form," which include "technical violations of the Anders requirements" such as "the failure to discuss issues appearing prominently in the record." Banks, 341 S.W.3d at 431-32; Wilson v. State, 40 S.W.3d 192, 199 (Tex. App.-Texarkana 2001, no pet.). We conclude the deficiencies of the Anders brief in this case are form errors of this variety. Accordingly, we must abate this appeal to afford appellate counsel the opportunity to rebrief, providing a professional evaluation of the record by citing to the law and evidence. Id.
CONCLUSION
We deny appellate counsel's motion to withdraw, and we abate the appeal. Id. Appellate counsel must investigate the record and file a brief on the merits or file an Anders brief that provides a professional evaluation of the issues. See In re Schulman, 252 S.W.3d at 409; Stafford v. State, 813 S.W.2d 503, 511 (Tex. Crim. App. 1991). In the brief, counsel should discuss the matters raised in the pro se brief and any other grounds that might arguably support the appeal. See In re Schulman, 252 S.W.3d at 406-08; Stafford, 813 S.W.2d at 511. Appellant's brief is due thirty days from the date of this order. The State's brief will be due thirty days after appellant's brief is filed. We remove this case from the submission docket.
It is so ORDERED.