13-22-00299-CR
Tex. App.Feb 23, 2023Background:
- Steven Tyrone Russell was convicted by a jury of assault against a person with whom he had a dating relationship, enhanced to a third-degree felony; punishment was further enhanced to a second-degree felony based on a prior felony conviction.
- The jury sentenced Russell to 15 years’ imprisonment and imposed a $5,000 fine.
- Russell’s court-appointed appellate counsel filed an Anders brief and a motion to withdraw, stating no arguable grounds for appeal and notifying Russell of his rights and providing forms for pro se review.
- Russell filed a pro se response to the Anders brief; the court therefore evaluated whether any arguable grounds existed.
- The court conducted an independent, full review of the record and concluded the appeal was wholly frivolous.
- The court granted counsel’s motion to withdraw, affirmed the trial court’s judgment, and informed Russell that no substitute counsel will be appointed; he may file a petition for discretionary review pro se or retain counsel.
Issues:
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Adequacy of Anders brief | Russell filed a pro se response raising issues (unspecified) challenging the appeal | Appellate counsel complied with Anders and Texas requirements; brief provided record references and advised Russell of rights | Anders brief was adequate; no arguable grounds found |
| Requirement for independent review | Russell’s pro se filings suggested arguable issues merit review | Court must perform full independent review on Anders record to determine frivolousness | Court performed independent review and found the appeal wholly frivolous |
| Counsel’s motion to withdraw | Russell could oppose withdrawal | Counsel properly sought withdrawal under Anders after concluding no nonfrivolous issues exist | Motion to withdraw granted |
| Appointment of new counsel / further review rights | Russell may seek counsel for further review | No substitute counsel will be appointed by the court; Russell may file PDR pro se or retain counsel within the deadline | No new counsel appointed; Russell informed of right and deadline to file petition for discretionary review |
Key Cases Cited
- Anders v. California, 386 U.S. 738 (established counsel’s duty to withdraw when appeal is frivolous)
- Penson v. Ohio, 488 U.S. 75 (1988) (mandates appellate courts’ full examination on receipt of Anders brief)
- In re Schulman, 252 S.W.3d 403 (Tex. Crim. App. 2008) (Texas standards for Anders briefs and counsel notification)
- Kelly v. State, 436 S.W.3d 313 (Tex. Crim. App. 2014) (procedural requirements when counsel files Anders brief)
- Bledsoe v. State, 178 S.W.3d 824 (Tex. Crim. App. 2005) (court’s options when Anders brief and pro se response filed)
- High v. State, 573 S.W.2d 807 (Tex. Crim. App. [Panel Op.] 1978) (procedural guidance on Anders compliance)
- Stafford v. State, 813 S.W.2d 503 (Tex. Crim. App. 1991) (standards for appellate review of Anders matters)
- Ex parte Owens, 206 S.W.3d 670 (Tex. Crim. App. 2006) (notice and procedural handling when counsel withdraws)