Carlos McCain v. the State of Texas
08-19-00219-CR
| Tex. App. | Jun 29, 2021Background:
- Appellant Carlos McCain was indicted for sexual assault of a child with a prior sexual-assault conviction; a jury found him guilty and he stipulated to multiple prior convictions. The trial court sentenced him to life under Texas Penal Code § 12.42(c)(2).
- Court-appointed counsel filed an Anders motion to withdraw and an Anders brief concluding there were no meritorious appellate issues; counsel provided the record to McCain and informed him of his right to file a pro se brief.
- McCain filed a pro se brief alleging: the State impermissibly varied the indictment, Confrontation Clause violations, denial of an impartial jury, and ineffective assistance of counsel.
- The court conducted an independent review of the record under Anders/Schulman and concluded the appeal is wholly frivolous and that no arguable grounds support reversal.
- The court granted counsel’s motion to withdraw but ordered counsel to notify McCain of this opinion and of his right to seek discretionary review because counsel’s motion did not explicitly state he had advised McCain of that right; no substitute counsel was appointed.
Issues:
| Issue | McCain's Argument | State's Argument | Held |
|---|---|---|---|
| Whether arguable grounds for appeal exist under Anders | McCain raised multiple substantive errors (indictment variance, Confrontation, impartial jury, IAC) | No reversible error; counsel’s Anders brief correctly found no meritorious issues | Court independently reviewed record and found the appeal wholly frivolous; no reversible error |
| Whether counsel complied with Anders/Kelly such that withdrawal is proper | McCain implied ineffective assistance; contested proceedings | Counsel timely filed Anders brief, provided record and advised McCain of right to file pro se brief | Court found substantial compliance with Anders/Kelly and granted withdrawal |
| Whether counsel properly advised McCain of his right to seek discretionary review | McCain argued for further review (pro se brief) | State noted procedural posture; counsel’s filing omitted explicit statement re: right to seek PDR | Court noted omission, ordered counsel to send this opinion and advise McCain of his right to file a petition for discretionary review within five days |
| Whether new counsel should be appointed / case remanded for new briefing | McCain sought consideration of his pro se complaints | State opposed remand; argued claims were frivolous | Court declined to remand or appoint new counsel; directed procedure for filing PDR pro se or retaining counsel |
Key Cases Cited
- Anders v. California, 386 U.S. 738 (establishes procedure when counsel finds appeal frivolous)
- In re Schulman, 252 S.W.3d 403 (Tex.Crim.App. 2008) (requires independent appellate review when counsel files Anders brief)
- Kelly v. State, 436 S.W.3d 313 (Tex.Crim.App. 2014) (counsel duties when withdrawing under Anders and providing record to appellant)
- Bledsoe v. State, 178 S.W.3d 824 (Tex.Crim.App. 2005) (appellate court need not address merits of issues raised in Anders/pro se response)
- Ex parte Owens, 206 S.W.3d 670 (Tex.Crim.App. 2006) (discusses counsel’s obligations to advise appellant of post-appeal rights)
- Gainous v. State, 436 S.W.2d 137 (Tex.Crim.App. 1969) (cited regarding Anders-related procedures)