Date: 10-03-2020

Case Style:

Case Number: 05-19-00466-CR

Judge: Leslie Osborne

Court: Court of Appeals Fifth District of Texas at Dallas

Plaintiff's Attorney: John Creuzot

Defendant's Attorney:

Description: Dallas, TX - Criminal Defense Attorney, Aggravated Sexual Assault



Appellant was originally indicted for aggravated sexual assault of a child under six years of age.
In finding appellant guilty, the trial court stated: “I do find you guilty of aggravated sexual assault of a child
under 14. Now, based on the evidence, I cannot say beyond a reasonable doubt that I had proof of under 6,
so I’m finding you guilty of aggravated sexual assault of a child under 14.”
–2–
arguable grounds to advance. See Anders v. California, 386 U.S. 738 (1967);
Gainous v. State, 436 S.W. 2d 137, 138 (Tex. Crim. App. 1969). Appellant’s
appointed counsel also filed a separate motion to withdraw stating he (1) informed
appellant of the motion to withdraw and the filing of the Anders brief, (2) provided
appellant with the “requisite copies required by Kelly2
while notifying him of his
various pro se rights,” and (3) supplied him with a form motion for pro se access to
the appellate record as well as the mailing address for this Court.3

In Anders, the United States Supreme Court outlined a procedure for ensuring
that an indigent defendant’s right to counsel on appeal is honored when his appointed
attorney concludes that the appeal is without merit. 386 U.S. at 744. If the appointed
attorney finds, after a conscientious examination of the record, that the case is
“wholly frivolous,” he should so advise the appellate court, request permission to
2 See Kelly v. State, 436 S.W.3d 313, 319–20 (Tex. Crim. App. 2014), which holds that an appointed
attorney who files an Anders brief must fulfill a number of additional functions: (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;
(3) inform him of his pro se right to seek discretionary review should the court of appeals declare his appeal
frivolous; and (4) take concrete measures to initiate and facilitate the process of actuating his client’s right
to review the appellate record, if that is what his client wishes.
3
By letter dated November 19, 2019, we advised appellant of his right to file a pro se response by
December 19, 2019, and that failure to file a pro se response by that date would result in the case being
submitted on the brief filed by appointed appellate counsel. After appellant informed this Court that he
wished to file a pro se response to the Anders brief filed by appellate counsel, we ordered appointed
appellate counsel to provide appellant with copies of the clerk’s and reporter’s records. Appointed appellate
counsel thereafter notified this Court by letter dated January 2, 2020, that a copy of the clerk’s and reporter’s
record was sent to appellant on December 10, 2019. Appellant’s pro se response was due by February 7,
2020. To date, this Court has not received a pro se response from appellant.
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withdraw, and file a brief referring to anything in the record that might arguably
support the appeal. Id.; In re Schulman, 252 S.W.3d 403, 406 (Tex. Crim. App.
2008); see also McCoy v. Court of Appeals of Wis., 486 U.S. 429, 437–39 (1988).
The purpose of the brief filed in support of counsel’s motion to withdraw, the
“Anders brief,” is to satisfy the appellate court that the appointed attorney’s motion
to withdraw is based upon a conscientious and thorough review of the law and facts.
Kelly v. State, 436 S.W.3d 313, 318 (Tex. Crim. App. 2014) (citing In re
Schulman, 252 S.W.3d at 408). The Anders brief should reflect that the appointed
attorney has adequately researched the case and used due diligence investigating
potential error before requesting to withdraw from further representation. In re
Schulman, 252 S.W.3d at 407. Texas courts further require an Anders brief to refer
to anything in the record that might arguably support the appeal, with citations to the
record and legal authority. High v. State, 573 S.W.2d 807, 811 (Tex. Crim. App.
[Panel Op.] 1978); see also Stafford v. State, 813 S.W.2d 503, 510 n. 3 (Tex. Crim.
App. 1991). The Court of Criminal Appeals has specifically held that an Anders brief
has certain requirements:
[I]n contested cases where “frivolous appeal” briefs are filed by courtappointed counsel . . . [courts] . . . should not . . . accept such 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.
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High, 573 S.W.2d at 813 (emphasis added). If done correctly, an Anders brief can
be more difficult and time-consuming to prepare than an ordinary appellate brief.
Banks v. State, 341 S.W.3d 428, 431 (Tex. App.—Houston [1st Dist.] 2009, order);
Wilson v. State, 40 S.W.3d 192, 196 (Tex. App.—Texarkana 2001, order.); see also
United States v. Wagner, 158 F.3d 901, 902 (5th Cir. 1998).
When an appellate court receives an Anders brief from an appellant’s courtappointed attorney asserting that no arguable grounds for appeal exist, we must
determine that issue independently by conducting our own review of the entire
record. Anders, 386 U.S. at 744; Stafford, 813 S.W.2d at 511. If we conclude, after
conducting an independent review, that “appellate counsel has exercised
professional diligence in assaying the record for error” and agree that the appeal is
frivolous, we should grant counsel’s motion to withdraw, Meza v. State, 206 S.W.3d
684, 689 (Tex. Crim. App. 2006), and affirm the trial court’s judgment. In re
Schulman, 252 S.W.3d at 409; Crowe v. State, 595 S.W.3d 317, 320 (Tex. App.—
Dallas 2020, no pet.). However, if we conclude either that appellate counsel has not
adequately discharged the constitutional duty to review the record for any arguable
error, or that the appeal is not wholly frivolous, we abate the appeal and return the
cause to the trial court for the appointment of new appellate counsel. Meza, 206
S.W.3d at 689; Crowe, 595 S.W.3d at 320.
Of course, in order to evaluate which option to exercise, this Court must have
the benefit of a brief that fully complies with the requirements of Anders.
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In this Anders brief, appointed appellate counsel has discussed why this
appeal is without merit and frivolous because the record reflects no reversible error
and, in his opinion, there are no grounds upon which an appeal can be predicated.
Counsel specifically discussed and briefed the following: (1) the indictment was
sufficient as it alleged all elements necessary to sustain a conviction, (2) the evidence
supporting the conviction for aggravated sexual assault of a child under the age of
fourteen was sufficient, (3) the trial court’s action in overruling appellant’s motion
for new trial was not error, and (4) the punishment assessed was within the applicable
range of punishment for a first-degree felony.
However, our review of the record shows that, although defense counsel at
trial made four objections, appointed appellate counsel did not discuss these
objections at all. We view such a failure as evidence that counsel failed to make a
thorough and professional evaluation of the record. See Crowe, 595 S.W.3d at 320.
As a result, the filed Anders brief in support of the motion to withdraw does not meet
the requirements of an Anders brief as set forth in High and is deficient as to form.4
4
An Anders brief can exhibit two types of deficiencies: a deficiency of form or a deficiency of
substance. Deficiencies of form include technical violations of the Anders requirements, such as failing to
cite the record or legal authority, as well as the failure to discuss issues appearing prominently in the record,
such as rulings on objections at trial. Wilson v. State, 40 S.W.3d 192, 198–200 (Tex. App.—Texarkana
2001, order) (finding deficiencies of form in an Anders brief where appointed counsel failed to discuss the
admission of evidence over objection); see also In re N.F.M., 582 S.W.3d 539, 545–46 (Tex. App.—San
Antonio 2018, no pet.) (ordering an attorney to re-brief where the Anders brief failed to address “the
numerous, overruled evidentiary objections at trial”). On the other hand, deficiencies of substance call into
question appointed counsel’s conclusion that the appeal is without merit. See Wilson, 40 S.W.3d at 199.
Our determination as to whether the form of an Anders brief is sufficient is an inquiry legally distinct from
our determination as to whether appointed counsel has correctly concluded the appeal is wholly frivolous.
See In re N.F.M., 582 S.W.3d at 546.
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See In re N.F.M., 582 S.W.3d 539, 545 (Tex. App.—San Antonio 2018, no pet.) (en
banc); Wilson, 40 S.W.3d at 198–99 (citing High, 573 S.W.2d at 812).
Because we have determined that the filed Anders brief does not fully comply
with the Anders requirements, we cannot yet address whether counsel has made a
thorough and complete professional evaluation of the record. Consequently, we
strike the filed Anders brief and order appointed appellate counsel to file a new brief.
Choice v. State, No. 05-19-00178-CR, 2020 WL 3166743, at *2 (Tex. App.—Dallas
June 15, 2020, no pet. h.) (mem. op., not designated for publication); Jimenez v.
State, No. 05-18-00848-CR, 2020 WL 3166740, at *2 (Tex. App.—Dallas June 15,
2020, no pet. h.) (mem. op., not designated for publication).5

Outcome: Accordingly, by separate order, we strike the brief filed in this case. We order
appellant’s counsel, within thirty days of the date of this opinion, to either (1) file a brief that addresses arguable issues found within the record, or (2) if, after a thorough and professional review of the record, counsel identifies no such arguable issues, file an Anders brief that complies with the requirements of High, 573 S.W.2d at 813.

Any motion for an extension of time to comply with our order will be looked
upon with disfavor.

Plaintiff's Experts:

Defendant's Experts:

Comments: