Veronica Calahan v. State
04-16-00353-CR
| Tex. App. | Oct 26, 2016Background
- Appellant Veronica Calahan’s court-appointed attorney filed an Anders brief and a motion to withdraw, asserting no meritorious appellate issues.
- Counsel certified he served Calahan with the Anders brief and informed her of her right to review the record and to file a pro se brief.
- The Fourth Court of Appeals notified Calahan she may file a pro se brief within 45 days of the order; the State may respond 30 days after her pro se brief or 30 days after the pro se brief deadline if none is filed.
- The court held counsel’s motion to withdraw in abeyance pending further order, citing Penson and Schulman authority governing Anders/Penson procedures.
- The court ordered that Calahan may obtain a copy of the appellate record by filing a written request with the trial court clerk by November 9, 2016, and directed the clerk to send the record immediately if requested.
- The Clerk of the Court was ordered to serve the order on appellant, counsel, the State, and the trial court clerk.
Issues
| Issue | Plaintiff's Argument (Calahan) | Defendant's Argument (State/Counsel) | Held |
|---|---|---|---|
| Adequacy of counsel's Anders filing | Counsel asserts the Anders brief shows no meritorious issues for appeal | State did not contest Anders compliance; court must ensure appellant informed and given opportunity to file pro se brief | Court accepted Anders filing procedure but required giving appellant notice and opportunity to file pro se brief |
| Appellant's right to file pro se brief and deadline | Calahan may pursue pro se review and brief | Counsel provided notice; court set timeline for filing and State response | Court ordered 45-day deadline for pro se brief; State may respond within 30 days after filing or after deadline if none filed |
| Counsel's motion to withdraw | Counsel seeks permission to withdraw after Anders brief | State did not oppose; court must evaluate and safeguard appellant's rights before allowing withdrawal | Court held motion to withdraw in abeyance pending compliance with Anders/Penson procedures |
| Access to appellate record | Calahan requested access to record to prepare a pro se brief | Trial court clerk must provide record upon written request by specified date | Court ordered Calahan may request the record by Nov 9, 2016; clerk must immediately send the record if requested |
Key Cases Cited
- Anders v. California, 386 U.S. 738 (1967) (requires counsel to file brief showing case lacks merit and to notify client of right to file pro se brief)
- Penson v. Ohio, 488 U.S. 75 (1988) (authorizes appellate courts to independently review record when counsel seeks to withdraw under Anders)
- Schulman v. State, 252 S.W.3d 403 (Tex. Crim. App. 2008) (Texas guidance on Anders/Penson procedures and counsel withdrawal)
- Nichols v. State, 954 S.W.2d 83 (Tex. App.—San Antonio 1997) (procedural notice requirements when counsel files Anders brief)
- Bruns v. State, 924 S.W.2d 176 (Tex. App.—San Antonio 1996) (same)