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Kay v. State

Court of Appeals of Texas, Twelfth District, Tyler

April 28, 2017

RICHARD PAUL KAY, APPELLANT
v.
THE STATE OF TEXAS, APPELLEE

         APPEAL FROM THE 159TH JUDICIAL DISTRICT COURT ANGELINA COUNTY, TEXAS

          Panel consisted of Worthen, C.J., Hoyle, J., and Neeley, J.

          ORDER OF ABATEMENT

          BRIAN HOYLE JUSTICE.

         Richard 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.

         Background

         Appellant 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.

         Anders Briefs

         Appellant's 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.

         If an 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.[1] 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.

         Counsel's Duties

         Determining 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).

         As 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).

         Appellate Review

         To 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 ...


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