Glen Leach v. State
13-15-00551-CR
| Tex. App. | Feb 2, 2017Background
- On Jan. 18, 2014, Corpus Christi police found Glen Leach asleep in a pickup, arrested him after finding a syringe, and discovered a baggie containing a purplish crystalline substance later confirmed as methamphetamine.
- Leach was indicted for possession of more than one but less than four grams of methamphetamine (third-degree felony).
- Leach pleaded open, executed a judicial confession, requested probation due to serious medical issues (lung and brain cancer; hospice care noted).
- The trial court convicted Leach and sentenced him to three years’ imprisonment.
- On appeal, Leach’s retained counsel failed to timely file a brief; the appellate court remanded for inquiry, then ordered counsel to file a merits brief or a Rule 6.5 motion to withdraw; no compliant filing was made and the appeal was submitted on the record.
- The court reviewed for fundamental error only (appellant filed no brief) and found none, affirming the conviction.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether failure to file appellate brief requires reversal or dismissal | Leach (through counsel) did not argue reversible error; no brief filed | State: absence of brief limits review to fundamental error; no fundamental error present | Court: review limited to fundamental error; none found; affirmed |
| Whether any fundamental error occurred at trial (e.g., denial of counsel, jurisdiction, venue, ex post facto, judge comments) | Leach asserted no specific trial errors in record | State: record shows counsel at plea, proper jurisdiction, venue at county seat, no ex post facto issue, no tainting judicial comments | Court: no fundamental error identified; rights were preserved |
| Whether statutory ten-day preparation rule for appointed counsel was violated | Leach: not asserted | State: rule inapplicable because counsel was retained, not appointed | Court: rule inapplicable; no error |
| Whether retained counsel’s failure to follow Anders procedure affected appeal | Leach: not argued | State: Anders not required for retained counsel; counsel should either brief or file a Rule 6.5 withdrawal; none done so appeal submitted on record | Court: Anders inapplicable to retained counsel; submission without briefs permitted; affirmed |
Key Cases Cited
- Anders v. California, 386 U.S. 738 (U.S. 1967) (procedures when appointed counsel seeks to withdraw on ground appeal is frivolous)
- Saldano v. State, 70 S.W.3d 873 (Tex. Crim. App. 2002) (three categories and examples of fundamental error)
- Lott v. State, 874 S.W.2d 687 (Tex. Crim. App. 1994) (appellate review when appellant fails to file brief limited to fundamental error)
- Dunbar v. State, 297 S.W.3d 777 (Tex. Crim. App. 2009) (personal jurisdiction established by indictment)
- Lopez v. State, 283 S.W.3d 479 (Tex. App.—Texarkana 2009) (Anders procedures not required for retained counsel)
- Harville v. State, 591 S.W.2d 864 (Tex. Crim. App. 1979) (ten-day preparation rule applies to appointed counsel)