Anthony Tucker v. State
03-16-00526-CR
| Tex. App. | May 2, 2017Background
- Anthony Tucker was convicted by a jury of Driving While Intoxicated under Tex. Penal Code § 49.04.
- At sentencing the trial court found a prior DWI conviction and enhanced the offense to a Class A misdemeanor, assessed 365 days in jail (probated two years) and a $2,000 probated fine.
- Appellant was represented on appeal by court-appointed counsel who filed a motion to withdraw supported by an Anders brief concluding the appeal was frivolous.
- Counsel certified he provided Tucker with the Anders brief, informed him of his rights to the record, to file a pro se brief, and to seek discretionary review, and supplied a form for pro se access to the record.
- Tucker filed a pro se brief; the Court of Appeals independently reviewed the record and the pro se brief and found no arguable issues.
- The Court granted counsel’s motion to withdraw and affirmed the conviction; no substitute counsel was appointed and instructions for seeking discretionary review were provided.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether there are any non-frivolous grounds for appeal permitting counsel to remain on the case | Tucker (via pro se brief) raised issues but no arguable legal grounds were identified in the record | State maintained conviction and sentence were proper and no reversible error appears | Court found no arguable grounds; appeal frivolous; allowed Anders withdrawal and affirmed conviction |
| Whether Anders procedures were satisfied so counsel may withdraw | Counsel argued he complied with Anders and Kelly by filing a brief evaluating the record and notifying Tucker of rights | State argued procedures were properly followed and independent review shows no reversible error | Court found counsel met Anders/Kelly requirements; independent review confirmed frivolousness; withdrawal granted |
Key Cases Cited
- Anders v. California, 386 U.S. 738 (1967) (establishes procedures for counsel to withdraw when appeal is frivolous)
- Penson v. Ohio, 488 U.S. 75 (1988) (addresses counsel withdrawal and independent appellate review when counsel finds appeal frivolous)
- Garner v. State, 300 S.W.3d 763 (Tex. Crim. App. 2009) (Texas discussion of Anders procedures)
- Kelly v. State, 436 S.W.3d 313 (Tex. Crim. App. 2014) (requires counsel to notify defendant and provide access to the appellate record when seeking to withdraw)
- Bledsoe v. State, 178 S.W.3d 824 (Tex. Crim. App. 2005) (confirms appellate court must conduct independent review when counsel seeks to withdraw under Anders)