Charles Turner Glover v. the State of Texas

• Court: Court of Appeals of Texas
• Decided: August 18, 2022
• Docket: 05-20-00155-CR
• Status: Published

Opinion

Abated and Opinion Filed August 18, 2022

In The Court of Appeals Fifth District of Texas at Dallas No. 05-20-00154-CR No. 05-20-00155-CR

CHARLES TURNER GLOVER, Appellant V. THE STATE OF TEXAS, Appellee

On Appeal from the Criminal District Court No. 1 Dallas County, Texas Trial Court Cause Nos. F18-55030-H & F18-55032-H

MEMORANDUM OPINION Before Justices Molberg, Nowell, and Goldstein Opinion by Justice Nowell

A jury convicted Charles Turner Glover of aggravated assault with a deadly

weapon and unlawful possession of a firearm by a felon. He was sentenced to thirty

years’ and twenty five years’ confinement, respectively. On appeal, appellant’s

counsel filed an Anders brief in which she concluded the appeal is “without merit

and wholly frivolous” because the record reflects no reversible error. Thereafter,

appellant filed a pro se response arguing the trial court abused its discretion by

denying his requested jury instructions on duress and necessity in the unlawful possession case, the trial court erred by denying his motion to suppress, and both

trial and appellate counsel rendered ineffective assistance.

When an appellate court receives an Anders brief from an appellant’s court-

appointed 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 v. California, 386 U.S. 738, 744 (1967) (emphasizing the reviewing

court, and not appointed counsel, determines whether the case is “wholly frivolous”

after fully examining the proceedings); Stafford v. State, 813 S.W.2d 503, 509 (Tex.

Crim. App. 1991). An appeal is “wholly frivolous” or “without merit” when it “lacks

any basis in law or fact.” McCoy v. Court of Appeals, 486 U.S. 429, 438 n.10 (1988).

Arguments are frivolous when they “cannot conceivably persuade the court.” Id. at

436. An appeal is not wholly frivolous when it is based on “arguable” grounds. See

Anders, 386 U.S. at 744.

If, after conducting an independent review of the record, we conclude that

“appellate counsel has exercised professional diligence in assaying the record for

error” and agree 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 403, 409 (Tex. Crim. App.

2008). However, if we conclude “either that appellate counsel has not adequately

discharged [her] constitutional duty to review the record for any arguable error, or

that the appeal is not wholly frivolous, notwithstanding appellate counsel’s efforts,”

–2– we must 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; see also Crowe v. State, 595

S.W.3d 317, 318–19 (Tex. App.—Dallas 2020, no pet.) (recognizing and applying

these rules).

After conducting an independent review of the record in this case, we

conclude that appointed counsel has not met her obligations under Anders. An

Anders brief filed in a contested case must describe any objections raised and ruled

on during trial and “discuss either why the trial court’s ruling was correct or why the

appellant was not harmed by the ruling of the trial court.” High v. State, 573 S.W.2d

807, 813 (Tex. Crim. App. [Panel Op.] 1978). During appellant’s testimony, the

State lodged numerous hearsay objections that were sustained by the trial court. Yet,

appellant’s appointed attorney does not identify or describe these objections, nor

does she discuss why the trial court’s ruling on these objections was either correct

or not harmful to appellant. Indeed, the necessity of discussing the State’s objections

and the rulings thereon becomes increasingly clear if those objections and rulings

prevented the defense from admitting evidence or pursuing a line of questioning,

cross-examination, or impeachment of any witness. Arevalos v. State, No. 05-19-

00466-CR, 2020 WL 5087778, at *3 (Tex. App.—Dallas Aug. 28, 2020, no pet.)

(mem. op., not designated for publication).

Further, this Court is concerned with counsel’s interpretation of what

constitutes “arguable” grounds for appeal. “The constitutional requirement of

–3– substantial equality and fair process can only be attained where counsel acts in the

role of an active advocate on behalf of his client, as opposed to that of amicus

curiae.” High, 573 S.W.2d at 810 (citing Anders, 386 U.S. at 744). Appellant’s

appointed attorney’s role as an advocate requires supporting her client’s appeal to

the best of her ability. See id. In the instant case, instead of advocating on behalf of

her client, appellant’s appointed counsel draws inferences against her client to

support her conclusion that there is no arguable error. One example occurs in

counsel’s discussion of the court’s ruling on appellant’s requested necessity and

duress instructions. Counsel’s brief states “[i]t is clear that the Appellant put himself

in harms [sic] way by pursuing the complainant.” However, the portion of the record

she references to support this statement is testimony from appellant wherein he

claims that he believed the victim was charging him. Counsel’s analysis of this ruling

is insufficient to allow the Court to conclude this issue is not an arguable ground for

appeal.

Consequently, we cannot agree with appellant’s appointed attorney’s

determination that the appeal is wholly frivolous. The above are only examples of

the issues that remain to be investigated in this record. We note that this was a

contested case tried before a jury to determine both guilt or innocence and proper

punishment, and the record contains many objections and rulings that were adverse

to appellant. While we express no opinion about whether there are meritorious issues

in this case, we are not satisfied that the brief filed by appointed counsel is based

–4– upon the type of review envisioned by Anders, i.e., a conscientious and thorough

review of the law and facts. See Kelly v. State, 436 S.W.3d 313, 318 (Tex. Crim.

App. 2014); In re Schulman, 252 S.W.3d at 407-08. Consequently, we grant

appointed counsel’s motion to withdraw and strike the Anders brief filed by

appointed counsel.

We remand this case to the trial court and order the trial court appoint new

appellate counsel to represent appellant. New appellate counsel should investigate

the record and 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 Anders and High.

We further order the trial court to inform this Court in writing of the identity

of new appellate counsel, new appellate counsel’s contact information, and the date

counsel is appointed.

We remove this appeal from the submission docket and abate the appeal for

the trial court to comply with the dictates of this opinion.

/Erin A. Nowell// ERIN A. NOWELL JUSTICE

220154f.u05 220155f.u05 Do Not Publish TEX. R. APP. P. 47.2(b)

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