Brandon Michael Breth v. State
11-17-00001-CR
| Tex. App. | Jul 20, 2017Background
- Appellant Brandon Michael Breth entered an open guilty plea to assault-family-violence with enhancement allegations: a prior assault against a family member and a prior felony assault on a public servant; he pleaded true to the enhancements.
- At the punishment hearing the trial court found the enhancement true and sentenced Breth to 12 years’ confinement.
- Appellant appealed; court-appointed appellate counsel filed a motion to withdraw supported by an Anders-style brief concluding the appeal was frivolous and without merit.
- Counsel provided Breth with the brief, the motion to withdraw, and access to the appellate record, and advised him of his right to file a pro se response and seek discretionary review; Breth did not file a response within the allotted time.
- The Eleventh Court of Appeals independently reviewed the record under the Anders/Schulman procedures and agreed the appeal was frivolous, granted counsel’s motion to withdraw, and dismissed the appeal.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether any non-frivolous appellate issues exist | Breth did not present any specific appellate arguments in the record or a pro se response | Counsel argued the record presents no arguable grounds and the appeal is frivolous (Anders brief) | Court found the appeal wholly frivolous after independent review and dismissed it |
| Whether counsel complied with Anders/Schulman requirements | N/A (no active argument by Breth) | Counsel asserted compliance: provided brief, record access, advised of rights to respond and seek PDR, and moved to withdraw | Court found counsel complied with applicable procedural requirements and granted withdrawal |
| Whether remand for new counsel is required | N/A | Counsel argued remand unnecessary because no arguable issues exist | Court concluded no arguable issues existed and did not remand; dismissed appeal |
| Whether appellant was properly advised of PDR rights | N/A | Counsel and court asserted appellant was advised and given materials to pursue PDR | Court reiterated appellant may file a petition for discretionary review and noted counsel’s obligation to send opinion and notice |
Key Cases Cited
- Anders v. California, 386 U.S. 738 (1967) (constitutional standard for counsel to withdraw when appeal is frivolous)
- In re Schulman, 252 S.W.3d 403 (Tex. Crim. App. 2008) (procedures for Anders briefs and appellate independent review)
- Kelly v. State, 436 S.W.3d 313 (Tex. Crim. App. 2014) (Anders-related standards in Texas practice)
- Bledsoe v. State, 178 S.W.3d 824 (Tex. Crim. App. 2005) (remand requirement when arguable grounds exist)
- Stafford v. State, 813 S.W.2d 503 (Tex. Crim. App. 1991) (authority cited for appellate counsel withdrawal practice)