Teresa Nevares Arteaga v. State

• Court: Court of Appeals of Texas
• Decided: June 13, 2007
• Docket: 07-07-00028-CR
• Status: Published

Opinion

NO. 07-07-0028-CR

IN THE COURT OF APPEALS

FOR THE SEVENTH DISTRICT OF TEXAS

AT AMARILLO

PANEL B

JUNE 13, 2007

______________________________

TERESA NEVARES ARTEAGA, APPELLANT

V.

THE STATE OF TEXAS, APPELLEE _________________________________

FROM THE 64^TH DISTRICT COURT OF HALE COUNTY;

NO. A15835-0412; HONORABLE ROBERT W. KINKAID, JR., JUDGE _______________________________

Before QUINN, C.J., and CAMPBELL and HANCOCK, JJ.

ORDER

In Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d (1967), the United States Supreme Court considered this question:

May a State appellate court refuse to provide counsel to brief and argue an indigent criminal defendant's first appeal as of right on the basis of a conclusory statement by the appointed attorney on appeal that the case has no merit and that he will file no brief?

Penson v. Ohio, 488 U.S. 75, 77, 109 S.Ct. 346, 102 L.Ed.2d 300 (1988). The Court concluded counsel's bare conclusion was not enough. 386 U.S. at 742. The Court found the constitutional right to assistance of counsel afforded an indigent defendant, and counsel's ethical obligation not to prosecute a frivolous appeal, can be reconciled by permitting appointed counsel to seek permission to withdraw, supported by a brief referring to anything in the record that might arguably support the appeal. 368 U.S. at 744.

Some ten years after the decision in Anders, the Court of Criminal Appeals noted the number of briefs filed in that court which failed to satisfy the requirement of Anders and Currie v. State, 516 S.W.2d 684 (Tex.Crim.App. 1974), and explicated what a brief supporting a motion to withdraw must contain. High v. State, 573 S.W.2d 807 (Tex.Crim.App. 1978). It held that, in contested cases, it would 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." Id. at 813.

After another decade of Anders practice, the U.S. Supreme Court reaffirmed the inadequacy of an appointed attorney's conclusory certificate that an appeal was frivolous without discussion of the governing authority or analysis. Penson v. Ohio, 488 U.S. 75, 109 S.Ct. 346, 102 L.Ed.2d 300 (1988). A brief filed in support of a motion to withdraw permits an appellate court to determine that counsel has conducted the detailed review necessary to protection of the defendant's constitutional right to assistance of counsel and that the appeal is indeed frivolous. Id. at 81. See also McCoy v. Wisconsin, 486 U.S. 429, 444, 108 S.Ct. 1895, 100 L.Ed.2d 440 (1988) (Anders brief is a device for assuring that the constitutional rights of indigent defendants are scrupulously honored).

In McCoy the Court upheld a state court rule that expressly required counsel filing an Anders brief to include a "discussion of why the issue lacks merit." 486 U.S. at 430. Texas courts similarly require citation to authority "supporting the attorney's analysis and conclusion." Johnson v. State, 885 S.W.2d 641, 646 (Tex.App.-Waco 1994, pet. ref'd)

Here, appellant's appointed counsel has filed a brief that recites the procedural history of the case with citations to the record. That history shows appellant pled guilty, but the adjudication of her guilt was deferred. On the State's motion to adjudicate her guilt appellant pled true to some of the grounds alleged. Despite the case's brief procedural history, however, the reporter's record on the motion to adjudicate guilt exceeds 130 pages.

After the procedural history, the brief presents the following argument, which we set out in full:

Court Appointed Counsel has reviewed carefully the Clerk's Record, the Reporter's Record, and applicable law as required by Anders, 386 U.S. 738; Currie, 516 S.W.2d 684; and High, 573 S.W.2d 807. Court Appointed Counsel has reviewed law applicable to the revocation of deferred adjudication community supervision including the Texas Code of Criminal Procedure, Article 42.12, §5 (Vernon 2005) and case law addressing these matters. These cases include Williams v. State, 592 S.W.2d 931 (Tex.Crim.App. 1979); Oloswosuko v. State, 826 S.W.2d 940 (Tex.Crim.App. 1992) and Hargesheimer v. State, 182 S.W.3d 906 (Tex.Crim.App. 2006). I find nothing in either record which would constitute reversible error. In applying the facts of this case, I believe this appeal to be frivolous and without merit.

As can be seen, the argument contains no discussion of the evidence presented. It contains no mention of trial motions or objections, or the absence of such. The authority cited in the brief is not offered in support of any analysis. Indeed, there is no discussion of what the cited authority holds and how those holdings relate to this case. In short, the brief fails to provide a basis on which this court can meet its duty to determine counsel has conducted a diligent and thorough search of the record for any arguable claim. McCoy, 486 U.S. at 442; Johnson, 885 S.W.2d at 647. The record references and citation to authority are no more than a gloss on the type of conclusory statement rejected in Anders and Penson. Accordingly, we deny counsel's motion to withdraw and strike the brief in support of that motion. Counsel is directed to file a new brief within 30 days of this order.

Per Curiam

Do not publish.