Glen Leach v. State

• Court: Court of Appeals of Texas
• Decided: July 19, 2016
• Docket: 13-15-00551-CR
• Status: Published

Opinion

NUMBER 13-15-00551-CR

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI - EDINBURG

GLEN LEACH, Appellant,

v.

THE STATE OF TEXAS, Appellee.

On appeal from the 319th District Court of Nueces County, Texas.

ORDER

Before Chief Justice Valdez and Justices Garza and Longoria Order Per Curiam

Glen Leach appeals his conviction for possession of a controlled substance.

Appellant's appointed counsel has filed a "frivolous appeal" brief. No pro se brief has

been filed. “If [appointed appellate] counsel finds his case to be wholly frivolous, after a

conscientious examination of it, he should so advise the court and request permission to

withdraw. That request must, however, be accompanied by a brief referring to anything

in the record that might arguably support the appeal.” Anders v. California, 386 U.S.

738, 744 (1967). Under Texas case law, appellate counsel filing an Anders brief must

provide the reviewing court with a professional evaluation of the record demonstrating

why there are no arguable issues to be advanced. High v. State, 573 S.W.2d 807, 812

(Tex. Crim. App. [Panel Op.] 1978); Currie v. State, 516 S.W.2d 684 (Tex. Crim. App.

1974). This evaluation requires not only that counsel refer the court to anything in the

record that might arguably support the appeal, citing applicable legal authorities, but it

also requires appellate counsel to discuss the evidence introduced at trial and provide the

reviewing court with ready references to the record. Stafford v. State, 813 S.W.2d 503,

510 at n.3 (Tex. Crim. App. 1991) (emphasis added). If counsel's brief does not comply

with the requirements of Anders and its progeny, appellate courts will strike the brief and

order appellate counsel to file a new brief. See, e.g., Jeffery v. State, 903 S.W.2d 776,

779 (Tex. App.—Dallas 1995, no pet.).

Counsel’s brief provides no legal authority for his conclusory allegation that there

are no arguable points of error. The brief contains only five citations: Anders, Ellis v.

United States, 356 U.S. 674 (1958) (regarding frivolous appeals), TEX. CODE CRIM. PROC.

Art. 44.02 (West, Westlaw through 2015 R.S.) (providing for a defendant’s right to

appeal), TEX. R. APP. P. 9 (regarding documents generally), TEX. R. APP. P. 38 (regarding

the requirements for briefs). Counsel's brief contains no analysis or explanation of the

2 validity of the indictment, the sufficiency of the evidence, the admissibility of the evidence

of appellant's guilt, or the validity of the punishment assessed. See Jeffery, 903 S.W.2d

at 779. Moreover, counsel’s brief fails to contain a motion to withdraw as counsel. See

In re Schulman, 252 S.W.3d 403, 404 (Tex. Crim. App. 2008) (orig. proceeding) (“An

Anders brief may not be filed without a motion to withdraw, as the sole purpose of an

Anders brief is to explain and support the motion to withdraw.”).

For the forgoing reasons, we STRIKE counsel's brief as inadequate. We remove

this appeal from the submissions docket. We order appellate counsel to file, within thirty

days of the date of this opinion, an amended brief in compliance with the applicable law

cited herein. Further, the amended brief must comply with Kelly v. State, 436 S.W.3d

313 (Tex. Crim. App. 2014). In accordance with this opinion, appellant’s counsel must:

(1) notify the appellant that counsel has filed an Anders brief and a motion to withdraw;

(2) provide the appellant with copies of both pleadings; (3) inform the appellant of

appellant’s rights to file a pro se response, review the record preparatory to filing that

response, and seek discretionary review if this Court concludes that the appeal is

frivolous; and (4) provide appellant with a form motion for pro se access to the appellate

record, lacking only the appellant’s signature and the date, and including the mailing

address for the court of appeals, with instructions to file the motion within ten days. See

Anders, 386 U.S. at 744; Kelly, 436 S.W.3d at 319–20. Further, counsel must inform this

Court, in writing, that counsel has met the foregoing requirements. Kelly, 436 S.W.3d at

320.

3 The State's brief will be due twenty-five days after counsel files appellant's second

amended brief. After the parties have re-briefed the appeal, this court will reschedule it

for submission.

It is so ORDERED.

PER CURIAM

Do not publish. TEX. R. APP. P. 47.2(b).

Delivered and filed the 19th day of July, 2016.