Pablo Hernandez v. the State of Texas

• Court: Court of Appeals of Texas
• Decided: October 18, 2023
• Docket: 05-22-00717-CR
• Status: Published

Opinion

CONCUR and Opinion Filed October 18, 2023

S In The Court of Appeals Fifth District of Texas at Dallas No. 05-22-00717-CR

PABLO HERNANDEZ, Appellant V. THE STATE OF TEXAS, Appellee

On Appeal from the 204th Judicial District Court Dallas County, Texas Trial Court Cause No. F21-76438

CONCURRING OPINION Opinion by Justice Goldstein

On the record before us, I agree with the majority that the above-numbered

appeal is frivolous under Anders.1 I write separately in recognition of the lack of

clear guidance on the use of Anders briefs and to specifically note there is a

distinction between reversibility and frivolousness.

There is a great disparity in the presentation of Anders briefs, ranging from

those that are wholly deficient to those mirroring appellate opinions. Counsel’s brief

is not deficient; rather, counsel has discharged her constitutional duty to thoroughly

1 See Anders v. California, 386 U.S. 738 (1967). and professionally evaluate the record for any arguable issue. Counsel has identified

numerous potentially arguable issues, conducted a detailed analysis of the law and

the facts, and reached conclusions. However, counsel endeavors to establish

compliance with Anders through the section entitled “Certificate of Counsel” in

which counsel notifies this Court that, “in her opinion, the appeal is without merit

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

further states that she has informed appellant that the appeal is without merit and

advised appellant of his right to seek discretionary review if this Court concludes

that the appeal is frivolous. Counsel also mentions in her conclusion and prayer that

the appeal is frivolous. The substantive portion of this sixty-eight-page brief, rather

than addressing the manner in which the appeal is frivolous and without merit,

instead focuses the analysis on a determination of whether reversible error occurred

in this case. Under Anders, the inquiry is whether no colorable argument could be

made for reversal – in other words, whether the appeal is wholly frivolous and

without merit. We recently noted the distinction between reversibility and

frivolousness:

The two concepts are certainly not the same. 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); see also Crowe v. State, 595 S.W.3d 317 (Tex. App.—Dallas 2020, no pet.). Arguments are frivolous when they “cannot conceivably persuade the court.” McCoy, 486 U.S. at 436; Crowe, 595 S.W.3d at 320. An appeal is not wholly frivolous when it is based on “arguable” grounds. See Anders, 386 U.S. at 744. Reversal only occurs if arguable error is found

–2– to have occurred and was harmful. TEX. R. APP. P. 44.2. Many non- frivolous arguments identify errors that do not result in reversal.

In re M.W., No. 05-22-00556-CV, 2023 WL 5524767, at * 2 n.5 (Tex. App.—Dallas

Aug. 28, 2023, no pet.) (mem. op.).

Counsel has fulfilled her ethical obligation to avoid burdening the courts with

wholly frivolous appeals based upon her “good-faith review of the law and record

suggest[ing] to [her] no plausible grounds for appeal,” and her “duty to withdraw is

based upon [her] professional and ethical responsibilities as an officer of the court

not to burden the judicial system with false claims, frivolous pleadings, or

burdensome time demands.” Kelly v. State, 436 S.W.3d 313, 318 (Tex. Crim. App.

2014). Counsel’s analysis facilitated this Court’s independent and detailed review

as it afforded ready references to the record and legal authorities to reach the

conclusion that any appeal would be frivolous and without merit. I merely caution

appointed counsel not to submit Anders briefs that mirror appellate opinions in

attempting to determine whether there is reversible error. It is the purview of this

Court to determine whether there is error that results in harm, and a determination

of reversible error is not the focus of an Anders brief. An Anders brief should address

–3– and analyze whether counsel believes an appeal is without merit and wholly

frivolous because it lacks any basis in law or in fact.

/Bonnie Lee Goldstein/ BONNIE LEE GOLDSTEIN Do Not Publish JUSTICE TEX. R. APP. P. 47 220717CF.U05

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