Aubrey Jake Merkel v. Dr. George J. Beto, Director, Texas Department of Corrections

Fifth Circuit

Aubrey Jake Merkel v. Dr. George J. Beto, Director, Texas Department of Corrections

387 F.2d 854

CourtCourt of Appeals for the Fifth Circuit

DecidedJanuary 4, 1968

Docket24514_1

StatusPublished

Cited by8 cases

This text of 387 F.2d 854 (Aubrey Jake Merkel v. Dr. George J. Beto, Director, Texas Department of Corrections) is published on Counsel Stack Legal Research, covering Court of Appeals for the Fifth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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Aubrey Jake Merkel v. Dr. George J. Beto, Director, Texas Department of Corrections, 387 F.2d 854 (5th Cir. 1968).

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Opinion

PER CURIAM:

In this habeas' corpus proceeding appellant attacked his conviction in the state court of the offense of felony theft. Relief was denied by the United States District Court for the Southern District of Texas after an evidentiary hearing.

The record reveals that despite appellant’s manifestation of a desire to appeal, his court appointed counsel concluded that there was no merit in an appeal. After obtaining a transcript and filing a Motion for Rehearing, counsel proceeded no further. The judgment of conviction was affirmed by the Court of Criminal Appeals of Texas, Merkel v. State, 363 S.W.2d 267 (1963), without the assistance of counsel, brief or formal bills of exception. We do not question the motives of counsel in reaching the conclusion not to pursue the appeal. Counsel did not file a motion for leave to withdraw from the case. As stated in Anders v. State of California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), our concern is with the duties and responsibilities of counsel to serve as an advocate on appeal after a criminal conviction even though such counsel has conscientiously concluded that there is no merit in the indigent’s appeal.

In the light of the teachings of Anders and Schwander v. United States, 386 F.2d 20 (5 Cir. 1967), we find that appellant was deprived of his right of direct appeal with the assistance of counsel and we remand the case in order to provide him with a review of his conviction with the aid of counsel on direct appeal as adequate as if counsel had pursued the appeal and rendered the services of an advocate in the first instance.

The judgment is reversed.

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PER CURIAM:

In this habeas' corpus proceeding appellant attacked his conviction in the state court of the offense of felony theft. Relief was denied by the United States District Court for the Southern District of Texas after an evidentiary hearing.

The record reveals that despite appellant’s manifestation of a desire to appeal, his court appointed counsel concluded that there was no merit in an appeal. After obtaining a transcript and filing a Motion for Rehearing, counsel proceeded no further. The judgment of conviction was affirmed by the Court of Criminal Appeals of Texas, Merkel v. State, 363 S.W.2d 267 (1963), without the assistance of counsel, brief or formal bills of exception. We do not question the motives of counsel in reaching the conclusion not to pursue the appeal. Counsel did not file a motion for leave to withdraw from the case. As stated in Anders v. State of California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), our concern is with the duties and responsibilities of counsel to serve as an advocate on appeal after a criminal conviction even though such counsel has conscientiously concluded that there is no merit in the indigent’s appeal.

In the light of the teachings of Anders and Schwander v. United States, 386 F.2d 20 (5 Cir. 1967), we find that appellant was deprived of his right of direct appeal with the assistance of counsel and we remand the case in order to provide him with a review of his conviction with the aid of counsel on direct appeal as adequate as if counsel had pursued the appeal and rendered the services of an advocate in the first instance.

The judgment is reversed.

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387 F.2d 854, Counsel Stack Legal Research, https://law.counselstack.com/opinion/aubrey-jake-merkel-v-dr-george-j-beto-director-texas-department-of-ca5-1968.

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