Texas Appellate Court Reviews “Anders Brief” Procedures and the Right to Counsel

The right to counsel in criminal proceedings is one of the key rights guaranteed by the Sixth Amendment to the U.S. Constitution, but this right remains in many ways elusive for a significant number of people. A lengthy series of court decisions roughly defines the circumstances in which the government must provide counsel, at its own expense, for indigent defendants. An important ruling regarding the right to counsel in criminal appeals is Anders v. California, 386 U.S. 738 (1967). A court-appointed attorney who concludes that no non-frivolous grounds for appeal exist cannot simply withdraw from representation. The attorney must submit a document, commonly known as an Anders brief, identifying potential grounds for appeal, whether the attorney considers them frivolous or not. The defendant may then continue the appeal pro se, or the court may appoint new counsel. Earlier this year, a Texas appellate court affirmed that Anders briefs are required in certain non-criminal cases. In re N.A., No. 05-15-01220-CV, slip op. (Tex. App.—Dallas, Jan. 25, 2016).

The U.S. Supreme Court first recognized the federal government’s obligation to provide counsel for indigent defendants in the 1930s. Johnson v. Zerbst, 304 U.S. 458 (1938). It did not extend this duty to state felony cases for another 25 years. Gideon v. Wainwright, 372 U.S. 335 (1963). Exactly when an indigent defendant becomes entitled to appointed counsel is still a matter of dispute to this day. The Supreme Court held in Brewer v. Williams, 430 U.S. 387 (1977), that the right to appointed counsel begins “at least…at or after the time that judicial proceedings have been initiated.” Id. at 398. Texas and many other states have expanded the right to appointed counsel to indigent individuals in certain civil proceedings, including some juvenile cases and cases in which the state is seeking the involuntary termination of parental rights. Tex. Fam. Code § 107.013(a)(1).

Anders involved a dispute between a defendant and his appointed counsel over whether to file an appeal. The attorney concluded that there were no non-frivolous grounds for appeal. He notified the court that he would not file an appeal and that the defendant wanted to file one pro se. The notification consisted solely of a letter from the attorney. The defendant’s appeal was not successful, and he sought to reopen the case, claiming denial of the right to counsel. The Supreme Court eventually ruled that the attorney’s letter did not meet the standard of representation required by the Sixth Amendment.

An attorney in this position must seek the court’s leave to withdraw and must submit the document now known as the Anders brief. This brief must “refer[] to anything in the record that might arguably support the appeal.” Anders, 386 U.S. at 744. The defendant must receive a copy and must have an opportunity to respond. The court must then conduct “a full examination of all the proceedings to decide whether the case is wholly frivolous.” Id. If the court finds that any of the possible points of appeal are not frivolous, it should appoint new counsel for the defendant. In N.A., cited above, the court reviewed an Anders brief submitted by the appointed counsel for a parent in a termination case, and it found that it met all of the requirements established by the Supreme Court.

These blog posts are meant to be illustrative only. Unless expressly stated to the contrary herein, these matters are not the result of any legal work of Michael J. Brown, but are used to communicate a particular point of view. Michael J. Brown does not claim credit for any legal work done by any lawyer or law firm either generally or specifically, with respect to the matters contained in this blog.

For more than 20 years, board-certified criminal appellate lawyer Michael J. Brown has represented defendants in West Texas state and federal criminal courts, helping them understand their rights and defending them against the state’s charges. To schedule a confidential consultation to see how we can help you, contact us today online or at (432) 687-5157.

More Blog Posts:

Motion to Vacate Sentence Alleges Fraud by Federal Law Enforcement Seeking to Seize Assets through Forfeiture, Texas Criminal Lawyer Blog, March 4, 2016

Supreme Court Denies Government’s Petition in Major Insider Trading Case, Texas Criminal Lawyer Blog, February 19, 2016

Supreme Court Ventures into Linguistic Analysis to Interpret Criminal Statute, Texas Criminal Lawyer Blog, February 5, 2016


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