Opinion
05-24-00400-CR
08-27-2024
TOMMY LEWIS WILLIAMS, Appellant v. THE STATE OF TEXAS, Appellee
On Appeal from the Crim Dist Ct 3 Tarrant County, Texas Trial Court Cause No. 1752722.
ORDER
BONNIE LEE GOLDSTEIN JUSTICE
Before the Court is appellant's counsel, Eric Labovitz's, motion to withdraw supported by the Anders brief, both filed August 20, 2024. While we are convinced Mr. Labovitz reviewed the record, we nonetheless conclude the brief is inadequate to support his motion to withdraw because it fails to discuss the trial court's numerous adverse rulings. The adverse rulings included challenges to the admission of expert-witness testimony based on appellant's untimely disclosure claim as well as the trial court's exclusion of testimony regarding the victim's prior sexual conduct pursuant to Texas Rule of Evidence 412 (b)(2)(C). In his brief, counsel fails to address whether the trial court's adverse rulings were either correct or not harmful to appellant.
This appeal was transferred from the Second Court of Appeals pursuant to a Texas Supreme Court docket equalization order. Accordingly, we apply the Second Court of Appeals' precedent to the extent required by Texas Rule of Appellate Procedure 41.3. See Tex. R. App. P. 41.3; Thomas v. State, No. 02-19-00056-CR, 2020 WL 938184, at *1 n.1 (Tex. App.-Fort Worth Feb. 27, 2020, no pet.) (mem. op., not designated for publication) (holding Anders brief did not follow the requirement of evaluating the record because the brief provided no analysis).
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 refer to pages in the record where objections were made, state 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 trial court's ruling. 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 403, 407 (Tex. Crim. App. 2008).
Here, the record demonstrates the trial court made numerous rulings adverse to appellant on evidentiary objections raised during trial by both sides. Yet, counsel does not identify or describe any of those objections, nor does he discuss why the trial court's rulings on those objections were either correct or not harmful to appellant. Accordingly, we conclude the Anders brief does not meet the requirements of High, and we STRIKE the August 20, 2024 Anders brief and we ORDER counsel to file a new brief in support of his pending motion to withdraw within TWENTY DAYS of the date of this order. Alternatively, counsel may file within TWENTY DAYS of this order a motion to disregard the motion to withdraw and a brief asserting error in the record. Any requests for extension of time are strongly disfavored.