Kelly, Sylvester
2014 Tex. Crim. App. LEXIS 911
| Tex. Crim. App. | 2014Background
- Indigent defendant convicted of aggravated robbery; on appeal, appointed counsel filed an Anders brief.
- Appointed counsel notified appellant of rights, including review of the appellate record and pro se response rights.
- Appellant sought access to the appellate record; he did not file a timely pro se response or extension.
- Sixth Court of Appeals deemed the appeal wholly frivolous and granted counsel’s withdrawal without addressing access.
- Texas Supreme Court granted discretionary review; both sides agreed access to the record should have been provided to prepare a response.
- Court held that appoint ed counsel has a duty to assist in obtaining access, and the Courts of Appeals must ensure access before ruling on Anders brief.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Duty of appointed counsel after Anders brief | Appellant argues counsel’s duty ends with withdrawal; access to record is needed. | State argues no further obligation beyond representation. | Appointed counsel must assist in obtaining access to the record. |
| Appellate court's responsibility to secure access | Appellant's right to review is unaddressed without access. | Court does not have explicit uniform rule to ensure access. | Court of appeals must ensure access before ruling on Anders brief. |
| Procedural mechanism to grant access | Flexible procedures suffice; no rigid form required. | Uniform formal procedure is unnecessary. | Court of appeals must issue a formal written order detailing the procedure and parties involved. |
| Timing and monitoring of access | Access should be provided promptly to file a pro se response. | No specific timing mandated beyond existing rules. | Order must specify timing, report when record is made available, and monitor until access is achieved. |
| Remedy for denial of access | Wrongly denied access taints the Anders proceeding. | Procedural adjustments can cure without remand. | Reverse and remand to permit meaningful access and a revised response, before ruling on the Anders brief. |
Key Cases Cited
- Anders v. California, 386 U.S. 738 (U.S. 1967) (establishes framework for Anders brief and withdrawal)
- Gainous v. State, 436 S.W.2d 137 (Tex.Crim.App. 1969) (appellate record availability emphasized)
- Price v. State, 449 S.W.2d 73 (Tex.Crim.App. 1969) (record made available to indigent defendant)
- Brown v. State, 485 S.W.2d 914 (Tex.Crim.App. 1972) (order to make the record available to appellant)
- McMahon v. State, 529 S.W.2d 771 (Tex.Crim.App. 1975) (abates appeals deprived of record access)
- Heiskell v. State, 522 S.W.2d 477 (Tex.Crim.App. 1975) (record access considerations for indigent defendants)
- Hawkins v. State, 515 S.W.2d 275 (Tex.Crim.App. 1974) (right to review appellate record)
- Caraway v. State, 560 S.W.2d 690 (Tex.Crim.App. 1978) (defendant must be advised of pro se rights)
- Ex parte Owens, 206 S.W.3d 670 (Tex.Crim.App. 2006) (counsel must inform client of rights to access record)
- Johnson v. State, 885 S.W.2d 641 (Tex.App.-Waco 1994) (record must show defendant had access before Anders compliance)
- Russell v. State, 735 S.W.2d 254 (Tex.App.-Dallas 1987) (indigent appellant entitled to present the record access)
- Eaden v. State, 161 S.W.3d 173 (Tex.App.-Eastland 2005) (pro se record access in Anders context)
- Escobar v. State, 134 S.W.3d 338 (Tex.App.-Amarillo 2003) (responsibility for ensuring access questioned)
- In re Schulman, 252 S.W.3d 403 (Tex.Crim.App. 2008) (Anders framework and record access considerations)
- Schulman, 252 S.W.3d 407 (Tex.Crim.App. 2008) (disciplinary and procedural context for Anders)