PD-0702-13 | Tex. Crim. App. | Jun 25, 2014
Lead Opinion
OPINION
delivered the opinion of the court
When appointed appellate counsel files a so-called Anders brief,
FACTS AND PROCEDURAL POSTURE
A jury convicted the appellant of aggravated robbery, and the trial court sentenced him to fifty years’ incarceration. Because he was indigent, the trial court appointed a lawyer to represent him on appeal. The appellant’s appointed counsel on appeal was unable to find any meritorious points of error to raise, however, and filed a motion to withdraw with an Anders brief. He wrote a letter to the appellant to inform him, inter alia, of his right to file a pro se response to the Anders brief.
The appellant duly filed a petition for discretionary review in this Court, arguing that the court of appeals violated his rights to due process and due course of law by deeming his appeal to be frivolous without first granting him access to the appellate record so that he could prepare an adequate response to his appointed counsel’s Anders brief. We granted the appellant’s petition and ordered the trial court to appoint counsel for the appellant to brief the issue. In their respective briefs, both the State and the appellant have now agreed that the appellant should have been allowed access to the appellate record in order to prepare his response to appointed counsel’s Anders brief.
In order to educate ourselves about whatever procedures may presently be in place, we solicited information from the various courts of appeals with respect to how they currently go about ensuring that appellate records are made available to indigent pro se appellants who wish to review them in order to respond to Anders briefs. More specifically, we invited the clerks of the fourteen courts of appeals in Texas to file amicus briefs or letters “informing us of the current policies and procedures in their respective districts for ensuring that pro se appellants who so desire are granted access to the appellate record for purposes of responding to An-ders briefs.”
ANALYSIS
In response to our invitation to submit amicus briefs/letters, the Clerk of the Sixth Court of Appeals has indicated that “[o]ur procedures vary according to the situation.” Upon receiving an Anders brief, the Sixth Court first makes sure that appellate counsel has informed the appellant of, inter alia, his right to review the appellate record. The more “helpful” appellate attorneys send a copy of the record to the appellant, we are told, but “[i]n the absence of such a proactive behavior, if the appellant contacts this Court requesting a record, we typically refer him or her alternatively to the defense attorney or the trial clerk.” Thus, the Sixth Court has adopted a policy that appellate counsel “has the responsibility to procure a copy of the record for appellant to review in preparation of the pro se response to the An-ders brief.”
Appointed Counsel’s Responsibility
Once appellate counsel is appointed to represent an indigent client, his only justification for filing an Anders brief is his ethical obligation to avoid burdening the courts with wholly frivolous appeals.
We have previously acknowledged that an appointed lawyer who files an Anders brief must fulfill a number of additional functions. He must write a letter to (1) notify his client of the motion to withdraw and the accompanying Anders brief, providing him a copy of each, (2) inform him of his right to file a pro se response and of his right to review the record preparatory to filing that response, and (3) inform him of his pro se right to seek discretionary review should the court of appeals declare his appeal frivolous.
The Appellate Court’s Responsibility
Once the appellant has filed his motion to make the appellate record available with the court of appeals, we think that the onus should shift to the court of appeals to ensure that, one way or another, this request is satisfied. Moreover, the appellate court may not rule on the motion to withdraw and the validity of the Anders brief until the appellant has been given access to, and an adequate opportunity to review, the appellate record. This, we think, is the optimal way to ensure that the indigent pro se appellant’s right to review the appellate record in order to respond to appellate counsel’s Anders briefs is honored.
So how do the various courts of appeals currently go about making arrangements for pro se access to the appellate record? Judging by their amicus briefs, the answer is that they do so in various ways, all of which seem to have met with reasonable success. Even within the same court of appeals, the procedure chosen may depend
By all accounts, each of these procedures has worked tolerably well in the past, and we need not mandate or even recommend one over the others. Our only requirement is that, upon receipt of the appellant’s motion for pro se access to the appellate record, the court of appeals enter a formal written order specifying the procedure to be followed in the particular case, sending copies of that order to the appellant, his appellate counsel, the State, the trial court, and the trial court’s clerk, so that all interested parties are on the same page.
CONCLUSION
We hold that the court of appeals in the instant case erred to grant appointed counsel’s motion to withdraw and declare the appellant’s appeal to be frivolous without first satisfying the appellant’s express request to gain access to the appellate record in order to meaningfully respond to the Anders brief. The judgment of the court of appeals is reversed and the cause is remanded to that court. After arranging for the appellant to have a meaningful opportunity to review the appellate record in accordance with the procedure we announce today, that court shall revisit its review of appellate counsel’s Anders brief and motion to withdraw in light of the appellant’s revised response, if any, and any response from the State.
. Anders v. California, 386 U.S. 738" court="SCOTUS" date_filed="1967-05-08" href="https://app.midpage.ai/document/anders-v-california-107423?utm_source=webapp" opinion_id="107423">386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967).
. In his letter to the appellant, appointed appellate counsel informed him:
I do hereby inform you that you have a right to review the record and file a Pro Se Appellate Brief should you desire to do so. You have the right to request the trial Court to provide a copy of the record at no expense to you and the Appellate Court may grant a timely request for extensions of time for filing the Pro Se brief.
The record does not reveal whether the appellant made a request to the trial court for access to the appellate record.
. In his petition for discretionary review, the appellant complains that the court of appeals denied his motion for access to the appellate record. We find no such written order in the appellate record explicitly denying the appellant’s motion. But neither does the record indicate that the court of appeals took any step to assure the appellant’s access to the appellate record before granting appellate counsel’s motion to withdraw.
. Kelly v. State, No. 06-12-00141-CR, 2013 WL 1804115, at *1 (Tex.App.-Texarkana Apr. 26, 2013) (mem. op., not designated for publication).
. Id.
. The court of appeals issued its opinion in this cause on April 26, 2013. The record before us contains a file-stamped copy of the appellant's pro se motion for rehearing, dated May 5, 2013, in which he renews his complaint that he was "not provided access to the clerk[’]s record or the reporter[’]s record[.]” Although it does not otherwise appear in the record, the appellant has attached to his petition for discretionary review a copy of a letter, addressed to the appellant, dated May 7, 2013, and appearing on the court of appeals’s letterhead, announcing that on that date the court of appeals overruled the appellant's motion for rehearing.
. This Court has never expressly held that access to the record is constitutionally required. But in Gainous v. State, 436 S.W.2d 137" court="Tex. Crim. App." date_filed="1969-01-15" href="https://app.midpage.ai/document/gainous-v-state-2407387?utm_source=webapp" opinion_id="2407387">436 S.W.2d 137, 138 (Tex.Crim.App.1969), we noted that "the careful trial judge made available” the appellate record. Likewise, in Price v. State, 449 S.W.2d 73" court="Tex. Crim. App." date_filed="1969-12-17" href="https://app.midpage.ai/document/price-v-state-1492371?utm_source=webapp" opinion_id="1492371">449 S.W.2d 73, 74 (Tex.Crim.App.1969), we observed that "the record was made available” to the indigent appellant. Following this example, in Brown v. State, 485 S.W.2d 914" court="Tex. Crim. App." date_filed="1972-09-25" href="https://app.midpage.ai/document/brown-v-state-2379604?utm_source=webapp" opinion_id="2379604">485 S.W.2d 914, 915 (Tex.Crim.App.1972), we ordered the trial court to "make the record ... available to appellant so that he might file a pro se brief if he so desires.” Thereafter, this Court
. See, e.g., Escobar v. State, 134 S.W.3d 338" court="Tex. App." date_filed="2003-11-17" href="https://app.midpage.ai/document/sammy-ray-escobar-v-state-2888110?utm_source=webapp" opinion_id="2888110">134 S.W.3d 338, 339 (Tex.App.-Amarillo 2003) (“[W]e have found no decision addressing on whom the responsibility falls of ensuring that an indigent appellant obtains access to the record for review for possible preparation of a pro se response in an Anders appeal.”). Some courts of appeals have placed the onus on appointed trial counsel to at least inform the appellant of the proper procedure for securing access to the appellate record. E.g., Johnson, 885 S.W.2d 641" court="Tex. App." date_filed="1994-10-19" href="https://app.midpage.ai/document/johnson-v-state-2385882?utm_source=webapp" opinion_id="2385882">885 S.W.2d at 647 n. 2; Bruns v. State, 924 S.W.2d 176" court="Tex. App." date_filed="1996-04-17" href="https://app.midpage.ai/document/bruns-v-state-2435981?utm_source=webapp" opinion_id="2435981">924 S.W.2d 176, 177 n. 1 (Tex.App.-San Antonio 1996, no pet.); Evans v. State, 933 S.W.2d 334" court="Tex. App." date_filed="1996-10-30" href="https://app.midpage.ai/document/evans-v-state-1517192?utm_source=webapp" opinion_id="1517192">933 S.W.2d 334, 335 n. 1 (Tex.App.-Waco 1996, no pet.). The Amarillo court of appeals has gone so far as to "hold that appointed counsel has the responsibility to procure a copy of the record for appellant to review in preparation of his pro se response to the Anders brief.” Escobar, 134 S.W.3d 338" court="Tex. App." date_filed="2003-11-17" href="https://app.midpage.ai/document/sammy-ray-escobar-v-state-2888110?utm_source=webapp" opinion_id="2888110">134 S.W.3d at 339; see also Thomas v. State, No. 03-11-00294-CR, 2012 WL 935285, at *1 (Tex.App.-Austin Mar. 15, 2012) (not designated for publication) ("In an abundance of caution, we request a written response from appointed counsel verifying that his client has in fact received a copy of the appellate record.”).
. State's Brief at 16.
. In re Schulman, 252 S.W.3d 403" court="Tex. Crim. App." date_filed="2008-04-30" href="https://app.midpage.ai/document/in-re-schulman-1384755?utm_source=webapp" opinion_id="1384755">252 S.W.3d 403, 410 (Tex.Crim.App.2008).
. Kelly v. State, No. PD-0702-13, slip op. at 4-5 (Tex.Crim.App. Dec. 20, 2013) (not designated for publication).
."Under rules 34.5(g) and 34.6(h) of the Texas Rules of Appellate Procedure,” the Sixth Court Clerk asserts, "we expect appointed counsel to promptly request permission from the trial court to obtain the duplicate clerk’s and reporter’s records filed with the trial court clerk for use by appellant in preparation of the response. See Escobar v. State, 134 S.W.3d [at 339]."
. Owens, 206 S.W.3d 670" court="Tex. Crim. App." date_filed="2006-09-13" href="https://app.midpage.ai/document/ex-parte-owens-1400636?utm_source=webapp" opinion_id="1400636">206 S.W.3d at 677 & n. 2 (Womack, J., concurring) (citing Tex. Disciplinary Rules Prof’l Conduct R. 3.01).
. Schulman, 252 S.W.3d 403" court="Tex. Crim. App." date_filed="2008-04-30" href="https://app.midpage.ai/document/in-re-schulman-1384755?utm_source=webapp" opinion_id="1384755">252 S.W.3d at 407.
. Id. at 408.
. Once an Anders brief is filed in Texas, there are two possible outcomes, both of which involve eventually granting original ap
. Id. at 687. See Penson v. Ohio, 488 U.S. 75" court="SCOTUS" date_filed="1988-11-29" href="https://app.midpage.ai/document/penson-v-ohio-112157?utm_source=webapp" opinion_id="112157">488 U.S. 75, 82-83, 109 S.Ct. 346, 102 L.Ed.2d 300 (1988) (''[T]he Court of Appeals should not have acted on the motion to withdraw before it made its own examination of the record to determine whether counsel’s evaluation of the case was sound.”).
. Schulman, 252 S.W.3d 403" court="Tex. Crim. App." date_filed="2008-04-30" href="https://app.midpage.ai/document/in-re-schulman-1384755?utm_source=webapp" opinion_id="1384755">252 S.W.3d at 411. See Tex. Code Crim. Proc. art. 26.04(j)(2) ("An attorney appointed under this article shall ... represent the defendant until ... appeals are exhausted, or the attorney is permitted or ordered by the court to withdraw as counsel for the defendant after a finding of good cause is entered on the record[.]”).
. Tex. Disciplinary Rules Prof'l Conduct R. 1.01 cmt. 6.
. Owens, 206 S.W.3d at 674 n. 28; Meza, 206 S.W.3d at 689 n. 23.
. In the instant case, appointed appellate counsel advised the appellant to file a motion to obtain access to the appellate record in the trial court. While the impulse was laudable, we think the more serviceable recommendation would have been to file his motion (as the appellant actually did here) in the court of appeals. By the time an Anders brief in support of a motion to withdraw can be filed, the appellate record must already be on file in the court of appeals. That being the case, all further proceedings in the trial court are suspended. See Tex.R.App. P. 25.2(g) ("Once the record has been filed in the appellate court, all further proceedings in the trial court-ex
. Several of the courts of appeals have indicated that it is sometimes the case that, when the appellate record is not voluminous, appellate counsel will sua sponte send a copy of the appellate record to the appellant along with the Anders brief and motion to withdraw. That would certainly expedite the process, and the court of appeals could then simply issue an order requiring the appellant to file his response to the Anders brief by a date certain. But we do not require appellate counsel to do so. If appellate counsel should choose to provide a copy of the record to his client sua sponte, he should alert the court of appeals to that fact in his notification to the court of appeals so that the court of appeals will know to proceed directly to issuing its scheduling order.
. At least the duplicate clerk's record is specifically designated to be retained by the trial court clerk "for the parties to use with the court’s permission.” Tex.R.App. P. 34.5(g). Although the trial court must also retain a duplicate of the reporter’s record, curiously, the rules do not likewise specify that the duplicate reporter’s record is for use by the parties. Tex.R.App. P. 34.6(h).
. The Eighth Court of Appeals has a unique procedure. After making sure that appellate counsel has notified the appellant of his right to review the appellate record, the Eighth Court waits to act until such time as the appellant may actually request to review the record. If so, the court of appeals then enters an order directing the clerk of the trial court to forward the actual duplicate of the appellate record to the warden of the unit in which the incarcerated appellant is housed, for a specified period of time, with explicit instructions to allow the appellant supervised access to that duplicate record.
Several of the courts of appeals, including the Eighth Court, have expressed concerns about how electronic copies can be made available to pro se appellants who are incarcerated. It occurs to us that, similar to the Eighth Court’s procedure with respect to the trial court clerk’s duplicate copy, courts of appeals could order either the trial-court clerk or its own clerk to send an electronic copy of the record to the warden of the appellant’s unit with explicit instructions to provide the appellant with supervised access to a computer upon which to review it or print it out.
.About half of the courts of appeals designate appellate counsel as the party responsible for arranging for the appellant to gain access to the trial court clerk’s duplicate of the appellate record. Even so, it is important for the court of appeals to enter a formal order to that effect and copy it to all of the above-named parties. This way, the trial judge and his clerk will be officially alerted to the fact that the appellant’s counsel will soon be seeking access to the duplicate record, and the appellant will know that his desire to review the appellate record will soon be honored.
Concurrence Opinion
filed a concurring opinion.
Although I agree that a court of appeals should not decide an Anders appeal until after a defendant who so desires has had an adequate opportunity to review the record and prepare a pro se brief,
I would resolve this case on the narrower basis that the court of appeals erred by deciding the Anders appeal without ensuring that Sylvester Kelly, appellant, had an adequate opportunity to obtain the appellate record and prepare a pro se brief in response, and on that sole basis I would reverse the judgment of the court of appeals. See Kelly v. State, No. 06-12-00141-CR, 2013 WL 1804115, at *1 (Tex. App.-Texarkana Apr. 26, 2013) (mem. op., not designated for publication). I, therefore, respectfully concur in this Court’s judgment but do not join the majority opinion in fashioning an overly burdensome regulatory framework to combat a problem that appears to be confined to the facts of this case.
I. Courts of Appeals Do Not Have the Ultimate Responsibility to Provide A Record
Unlike the Texas Rules of Appellate Procedure, which do not place upon an appellate-court clerk the ultimate responsibility for obtaining an appellate record for a defendant, the ethical rules for attorneys do require them to zealously represent their clients until the point when they are permitted to withdraw from the case. The ultimate responsibility for providing a record to a defendant, therefore, properly falls on counsel.
Rule 12 of the Texas Rules of Appellate Procedure describes the duties of an appellate-court clerk as docketing the case, placing the docket number on each case’s record, safeguarding the record, permitting individuals to withdraw the record under certain conditions, accounting for any money received, and sending the parties notice of the judgments and mandates issued in the case by the court of appeals. See Tex.R.App. P. 12.1-12.6. Although the rules provide that the clerk must permit individuals to withdraw the record under certain conditions, those rules do not charge him with the ultimate responsibility to ensure that an appellant obtains access to or a copy of the record. Rather than place this burden on the appellate courts, therefore, this Court should reaffirm the well-established principle that an attorney must zealously represent his client.
The preamble to the Texas Disciplinary Rules for Professional Conduct declares that in “all professional functions, a lawyer should zealously pursue clients’ interests within the bounds of the law.” Tex. Disciplinary R. Prof’l Conduct preamble ¶ 3, reprinted in Tex. Gov’t Code, tit. 2, subtit. G, app. A (West 2014). Having informed his client of his belief that any grounds raised on appeal would be wholly frivolous, counsel should communicate with his client to determine whether he would like a copy of the record to assist him in preparing any pro se brief in response to counsel’s Anders brief. See id. (“In [providing zealous representation], a lawyer should be competent, prompt, and diligent. A lawyer should maintain communication with a client concerning the representation.”). If his client desires to file a pro se response brief, then counsel has the duty to make sure that his client is given access to the record. See id. R. 1.01 cmt. 6 (a lawyer,
Here, when appellant asked counsel for a copy of the record, counsel did nothing to ensure that appellant actually received access to the record other than merely telling him to contact the trial-court clerk, which was inadequate to ensure that appellant would receive access to the record in time for him to prepare a pro se brief. Furthermore, counsel did not file a motion for extension of time asking the appellate court not to rule on the Anders brief or his motion to withdraw until appellant could obtain the record, review it, and prepare any pro se response regarding the Anders claim. See Kelly, 2013 WL 1804115, at *1 (observing that, as of date of opinion’s filing, “no brief [by appellant] has been filed and no request for extension has been made”). By failing to render timely assistance in ensuring that appellant was given adequate access to the record, counsel failed in his duty to zealously represent his client. The court of appeals, aware that appellant was attempting to obtain the appellate record after his attorney had filed an Anders brief, erred by resolving the appeal without determining whether appellant had received the record and had been afforded an adequate opportunity to review it and prepare a pro se brief. The current rules that require an attorney to zealously represent his client until he is given permission to withdraw from representation are all that are necessary to ensure that a client receives access to the appellate record after his attorney files an Anders brief. It is thus unnecessary to impose new administrative regulations on the appellate courts for the purpose of resolving this case.
II. Conclusion
This Court’s decision to impose new requirements on the courts of appeals will result in an unnecessary micro-managing of those courts’ administrative pi'ocesses and will absolve appellate lawyers in An-ders cases of their ethical duty to assist their clients up to the point when they are given permission to withdraw from a case. Here, the parties agree that appellant should have been permitted access to the appellate record for the purpose of enabling him to prepare his response to counsel’s Anders brief, and the record supports a conclusion that the court of appeals should not have decided this Anders appeal until after counsel had ensured that appellant received the appellate record and had an opportunity to review the record and prepare a pro se brief. Appellant, therefore, is entitled to have the opportunity to do this upon this Court’s reversal and remand of this case to the court of appeals. The specific failure in this case should not be the basis for a blanket rule for the treatment of appellate records in all Anders appeals, which, as conceded by the majority opinion, are already being appropriately addressed by the courts of appeals at present. I, therefore, respectfully concur only in this Court’s judgment.
. See Anders v. California, 386 U.S. 738, 744, 87 S.Ct. 1396, 1400, 18 L.Ed.2d 493 (1967) (describing pre-withdrawal requirements for an appointed attorney who believes that an appeal is frivolous).
Concurrence Opinion
filed a concurring opinion.
The principle of subsidiarity is the concept that a central authority should have a subsidiary function, performing only those tasks that cannot be performed effectively at a more immediate or local level. It is the idea that problems are best solved where they occur in an organization. I believe that the courts of appeals understand better than we do what is necessary to ensure that appellants are able to review the appellate record. Despite the mistake in this case, it appears that each court has a process that effectively addresses the matter. Because I think that this Court imposes an unnecessary burden upon the courts of appeals, I join its judgment but not its opinion.