Caseflicks

Court of Criminal Appeals of Texas • 2008

In Re Schulman

252 S.W.3d 403 | 2008 Tex. Crim. App. LEXIS 585

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Takeaway

In short, this case confirms that in Texas an Anders brief must accompany a motion to withdraw, but counsel remains responsible for the appellant until the appellate court rules on that motion.

Background

Marlyn Solanas pleaded guilty pursuant to a plea bargain to intoxication manslaughter. The trial court imposed a ten-year sentence and a $2,500 fine but placed her on community supervision. More than a year later, Solanas pleaded true to alleged violations of supervision, and the trial court revoked supervision and imposed the ten-year prison sentence.

Solanas timely appealed, and David Schulman was appointed as appellate counsel. After the appeal was transferred to the Seventh Court of Appeals, Schulman filed an Anders brief stating that, after reviewing the record, he found the appeal frivolous. He gave Solanas a copy of the brief, informed her of her opportunity to review the record and file a pro se response, but did not file a motion to withdraw.

The court of appeals instructed Schulman to submit a motion to withdraw. He refused, arguing that Texas law and his continuing moral and professional obligations required him to remain counsel through the end of the appellate process. The court ordered him to reconsider and gave him additional time to file the motion. Schulman instead sought mandamus relief in the Court of Criminal Appeals, contending that the intermediate court had violated a ministerial duty by requiring withdrawal.

Issues

Issue #1

Whether appointed appellate counsel who files an Anders brief must also file a motion to withdraw from representation.

Holding

Yes. Under the Anders procedure followed in Texas, counsel who concludes after conscientious review that an appeal is wholly frivolous must seek leave to withdraw, and the Anders brief must accompany and support that request.

Reasoning

The Court treated the motion to withdraw as the central feature of the Anders procedure. An appointed lawyer who determines that an appeal is frivolous cannot ethically continue to press frivolous claims or burden the courts with arguments that cannot succeed. Counsel's proper course is therefore to advise the appellate court of that conclusion and request permission to withdraw.

An Anders brief is not an independent substitute for a motion to withdraw. Its function is to demonstrate that counsel conducted a thorough review of the record and applicable law before seeking withdrawal. It supplies the case history, record citations, legal authorities, and any potentially plausible issues so that the court can evaluate counsel's conclusion rather than accept a bare assertion that the appeal lacks merit.

The brief serves several practical purposes, but each supports the withdrawal request. It gives the appellate court a roadmap for its own independent review, gives the defendant useful record references for a pro se response, and documents counsel's diligent work. Thus, in the Court's phrasing, the Anders brief is the 'tail,' while the motion to withdraw is the 'dog.'

Although Smith v. Robbins permits states to use procedures other than Anders so long as they protect the right to appellate counsel, Texas had adopted and continued to follow the traditional Anders framework. Nothing in Texas law or existing precedent supported Schulman's position that counsel could file an Anders brief while declining to seek withdrawal.

Issue #2

Whether filing a motion to withdraw with an Anders brief immediately ends counsel's duties to the indigent appellant.

Holding

No. Counsel remains responsible for the client until the appellate court grants the withdrawal motion after completing the Anders review process.

Reasoning

The Court distinguished sharply between filing a withdrawal motion and obtaining an order granting it. The motion merely begins the Anders process; it does not terminate the attorney-client relationship or relieve counsel of existing duties.

Before acting on the motion, the court of appeals must ensure that counsel has sent the Anders brief to the defendant, informed the defendant of the right to file a pro se response and of the right to pursue a pro se petition for discretionary review, and informed the court that these duties have been performed. The defendant must then have an opportunity to respond, and the appellate court must independently examine the record, counsel's brief, and any pro se filing.

If the appellate court agrees that the appeal is wholly frivolous, it may grant the motion to withdraw and dismiss the appeal. If it identifies a colorable issue, it must grant the original attorney's withdrawal motion, abate the appeal, and return the case to the trial court for appointment of new counsel to file a merits brief.

Until the court grants withdrawal, counsel must continue to perform client-related responsibilities, including answering appropriate questions and providing required notices. Even after withdrawal is granted, counsel may have the ministerial duty to send the former client the appellate opinion and notice of the right to file a pro se petition for discretionary review. These continuing informational duties did not justify refusing to file the required motion.

Issue #3

Whether the Seventh Court of Appeals violated a ministerial duty such that mandamus relief should issue.

Holding

No. The court of appeals correctly required Schulman to file a motion to withdraw as a condition of proceeding with his Anders appeal, so mandamus relief was unavailable.

Reasoning

Mandamus cannot issue when the complained-of order is legally correct rather than a violation of a clear ministerial duty. Because Texas's Anders procedure requires counsel to seek leave to withdraw when counsel concludes that the appeal is frivolous, the Seventh Court of Appeals acted properly in directing Schulman to file that motion.

Schulman's concern about inconsistent practices among Texas courts of appeals identified a need for uniformity, but it did not establish a right to omit the motion to withdraw. The Court acknowledged that Texas's appellate rules did not expressly set out every Anders step and that the Legislature or Texas courts could adopt a different procedure in the future. Under the procedure then in force, however, the motion to withdraw remained mandatory.

The Court therefore denied the application for mandamus. The court of appeals could not conduct the appeal in an orderly Anders framework until Schulman filed a request for leave to withdraw supported by his Anders brief.