Latoya Denise McMullen v. State
05-15-01285-CR
| Tex. App. | Oct 20, 2016Background
- Appellant Latoya Denise McMullen was convicted of repeated violation of a protective order and stalking; after adjudication, the trial court sentenced her to five years' imprisonment in each case.
- Appointed appellate counsel filed a motion to withdraw under Anders v. California, asserting the appeals were frivolous.
- The appellate brief submitted by counsel was deficient: it misidentified the appellant, and failed to analyze evidentiary sufficiency, admissibility, punishment validity, or effectiveness of trial counsel.
- Because counsel did not perform a professional evaluation of the record, the court found the brief did not satisfy Anders requirements and raised equal protection concerns.
- The Court struck the inadequate Anders brief, granted counsel’s motion to withdraw, and ordered the trial court to appoint new appellate counsel to review the record and file a new brief.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Adequacy of Anders brief | Counsel contends appeal is frivolous and seeks to withdraw | State did not oppose withdrawal on adequacy grounds | Brief is inadequate—fails Anders requirements; must be struck |
| Right to counsel on appeal | Appellant (through counsel) effectively waived further argument by asserting frivolousness | State implicit position: allow withdrawal if Anders complied | Appellant entitled to meaningful review; counsel must perform professional evaluation |
| Remedy for inadequate Anders brief | Counsel implicitly argues withdrawal should be allowed despite defects | State has no contrary remedy proposal in record | Court ordered new counsel appointed to investigate and file new brief |
| Timing / procedural next steps | N/A (counsel sought withdrawal) | N/A | Trial court must appoint new counsel within 30 days; new brief due 30 days after appointment; State brief due 30 days after appellant’s brief |
Key Cases Cited
- Anders v. California, 386 U.S. 738 (1967) (procedures required when appointed counsel believes appeal is frivolous)
- McCoy v. Court of Appeals, 486 U.S. 429 (1988) (attorney must withdraw if appeal is frivolous)
- Stafford v. State, 813 S.W.2d 503 (Tex. Crim. App. 1991) (remedy for inadequate Anders brief is appointment of new counsel to review record)