Court of Appeals of Texas, Twelfth District, Tyler
FROM THE 159TH JUDICIAL DISTRICT COURT ANGELINA COUNTY, TEXAS
consisted of Worthen, C.J., Hoyle, J., and Neeley, J.
ORDER OF ABATEMENT
Paul Kay appeals his conviction for evading arrest or
detention. Appellant's counsel filed a brief asserting
compliance with Anders v. California, 386 U.S. 738,
87 S.Ct. 1396, 18 L.Ed.2d 493 (1967). We grant counsel's
motion to withdraw, abate the appeal, and remand the cause
for appointment of new counsel.
was charged by indictment with aggravated assault on a public
servant and evading arrest or detention. He pleaded
"guilty" to evading arrest and "not
guilty" to aggravated assault. The matter proceeded to a
jury trial, and the jury found Appellant "not
guilty" of aggravated assault. The jury assessed
Appellant's punishment for evading arrest at imprisonment
for ten years and a $5, 000 fine. This appeal followed.
appointed counsel has filed a motion to withdraw and a brief
stating that this appeal is frivolous. Because counsel
asserts compliance with Anders v. California, we
must determine whether such compliance has been achieved.
appellant's attorney believes his appeal is frivolous, he
must withdraw from representing him. Jeffery v.
State, 903 S.W.2d 776, 779 (Tex. App.-Dallas 1995, no
pet.) (citing McCoy v. Ct. App. of Wis., Dist. 1,
486 U.S. 429, 437, 108 S.Ct. 1895, 1901, 9 L.Ed.2d 811
(1963); Anders, 386 U.S. at 744, 87 S.Ct. at 1400).
To withdraw from representation, the appointed attorney must
file a motion to withdraw accompanied by a brief showing the
appellate court that the appeal is frivolous. Jeffery,
903 S.W.2d at 779 (citing McCoy, 486 U.S. at 439,
108 S.Ct. at 1902; Anders, 386 U.S. at 744, 87 S.Ct.
at 1400). This brief in support of the motion to withdraw is
the document now commonly called an
"Anders" brief. Jeffery, 903
S.W.2d at 779.
that an appeal is "frivolous" is not a conclusion
to be reached lightly by counsel. Johnson v. State,
885 S.W.2d 641, 645 (Tex. App.-Waco 1994, pet. ref'd),
modified on other grounds, Wilson v. State,
955 S.W.2d 693 (Tex. App.-Waco 1997, no pet.). As described
by the United States Supreme Court, appellate counsel has the
duty to "master the trial record, thoroughly research
the law, and exercise judgment in identifying the arguments
that may be advanced on appeal." McCoy, 486
U.S. at 438, 108 S.Ct. at 1902. "In searching for the
strongest arguments available, the attorney must be zealous
and must resolve all doubts and ambiguous legal questions in
favor of his or her client." Id., 486 U.S. at
444, 108 S.Ct. at 1905. If the only theories that the
attorney can discover after this conscientious review of the
record and the law are "arguments that cannot
conceivably persuade the court, " then the appeal should
be considered frivolous. Id., 486 U.S. at 436, 108
S.Ct. at 1901. "However, we stress that any point which
is 'arguable on [the] merits' is, by definition, not
frivolous." Johnson, 885 S.W.2d at 645 (quoting
Anders, 386 U.S. at 744, 87 S.Ct. at 1400).
applied in Texas, the ultimate test of an Anders
brief is whether it contains a "professional evaluation
of the record demonstrating why, in effect, there are no
arguable grounds to be advanced." Johnson, 885
S.W.2d at 646 (quoting High v. State, 573 S.W.2d
807, 812 (Tex. Crim. App. 1978)); see Stafford v.
State, 813 S.W.2d 503, 510 n.3 (Tex. Crim. App. 1991).
In Texas, an Anders brief need not specifically
advance "arguable" issues if counsel finds none,
but it must provide record references to the facts and
procedural history and set out pertinent legal authorities.
In re Schulman, 252 S.W.3d 403, 406 n.9 (Tex. Crim.
App. 2008) (orig. proceeding). However, counsel must refer to
anything in the record that might arguably support the
appeal. See Anders, 386 U.S. at 744, 87 S.Ct. at
1400; Schulman, 252 S.W.3d at 406 n.9. Further
"[t]his court will not accept [Anders] briefs
unless they discuss the evidence adduced at the trial, point
out where pertinent testimony may be found in the record,
refer to pages in the record where objections were made, the
nature of the objection, the trial court's ruling, and
discuss either why the trial court's ruling was correct
or why the appellant was not harmed by the ruling of the
court." Johnson, 885 S.W.2d at 646 (quoting
High, 573 S.W.2d at 813).
satisfy federal constitutional concerns, a court of appeals
must be satisfied "that the attorney has provided the
client with a diligent and thorough search of the record for
any arguable claim that might support the client's
appeal." Id. at 647 (quoting McCoy,
486 U.S. at 442, 108 S.Ct. at 1904). This task requires that
the court examine counsel's motion to withdraw and brief
for compliance with the rules set forth above. See
Johnson, 885 S.W.2d at 647. A lack of such compliance
renders a brief deficient as to form, in which case the court
should give counsel an ...