Glen Leach v. State
13-15-00551-CR
| Tex. App. | Oct 6, 2016Background
- Appellant Glen Leach pleaded guilty without a plea bargain to possession of a controlled substance (third-degree felony) and was sentenced to three years in TDCJ.
- Retained counsel filed a brief asserting the appeal was frivolous (an Anders-style brief).
- The Court initially struck that brief by order dated July 19, 2016, but later withdrew that strike as improvidently issued.
- The opinion explains the ethical obligation of attorneys (appointed and retained) to refuse frivolous appeals, and distinguishes the court’s supervisory role over appointed counsel from retained counsel.
- The court reiterates that retained counsel, upon determining an appeal is frivolous, must notify the court and seek leave to withdraw by filing a motion complying with Texas Rule of Appellate Procedure 6.5.
- The court ordered retained counsel to either file a merits brief or a Rule 6.5-compliant motion to withdraw within fifteen days and explained consequences if counsel or appellant fails to act.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether retained counsel may rely on Anders procedure | Leach (through counsel): appeal lacks merit and counsel characterized it as frivolous in a brief | State: opposes no-action; expects proper procedural compliance | Court: Anders safeguards don’t apply the same to retained counsel; retained counsel must follow Rule 6.5 procedure or file merits brief |
| Ethical obligation to refuse frivolous appeals | Counsel for Leach contends appeal has no merit, implying duty to decline further pursuit | State emphasizes duty but notes courts have less supervisory role with retained counsel | Court: retained counsel still has ethical obligation to refuse frivolous appeals, consistent with precedent |
| Required procedure when counsel deems appeal frivolous | Counsel filed a frivolous-appeal brief rather than a Rule 6.5 motion to withdraw | State requires formal motion complying with Rule 6.5 for withdrawal | Court: counsel must either file a merits brief or a Rule 6.5-compliant motion to withdraw within 15 days |
| Consequences of failure to comply with directive | Leach may be unable to prosecute appeal pro se if no action taken | State will be allowed to respond if counsel files merits brief | Court: if counsel files nothing within 15 days, appellant may object, retain new counsel, request appointed counsel if indigent, or request record and time to file pro se brief; if appellant does nothing in 30 days appeal may be submitted without briefs |
Key Cases Cited
- Anders v. California, 386 U.S. 738 (U.S. 1967) (procedural protections when counsel believes appeal is frivolous)
- McCoy v. Court of Appeals of Wisconsin, 486 U.S. 429 (U.S. 1988) (ethical obligation of attorneys to refuse frivolous appeals)
- Rivera v. State, 130 S.W.3d 454 (Tex. App.—Corpus Christi 2004) (retained-counsel obligations regarding frivolous appeals)
- Pena v. State, 932 S.W.2d 31 (Tex. App.—El Paso 1995) (procedure for retained counsel seeking to withdraw)
- Lopez v. State, 283 S.W.3d 479 (Tex. App.—Texarkana 2009) (retained counsel provides protections Anders was designed to ensure)
- Torres v. State, 271 S.W.3d 872 (Tex. App.—Amarillo 2008) (retained counsel still ethically obligated to refuse frivolous appeals)
- Nguyen v. State, 11 S.W.3d 376 (Tex. App.—Houston [14th Dist.] 2000) (Anders protections not applied the same to retained counsel)
- Knotts v. State, 31 S.W.3d 821 (Tex. App.—Houston [1st Dist.] 2000) (options available to appellant if counsel seeks to withdraw)