Monday, December 14, 2009

Anders Brief - How to Avoid a Frivolous Appeal

What do you do when you believe that there exist no grounds for appeal to your indigent defendant's conviction? Do you file an appeal anyway, knowing that your points of error are frivolous and risk running afoul of your state bar's ethical obligations? Do you simply file no appeal at all and leave your client high and dry? The recently reported CCA case of Garner v. State, reminds us what to do.

The solution is the Anders brief, named after the Supreme Court case of Anders v. California, 386 U.S. 738 (1967) and elaborated upon in Bledsoe v. State, 178 S.W.3d 824 (Tex.Cr.App. 2005). In Anders, the Supreme Court held that the responsibility to determine whether an appeal is frivolous in nature lies with the appellate court - not with the attorney of record. In order to ensure effective counsel on appeal for indigent defendants, without requiring counsel to breach ethical prohibitions against making frivolous arguments, the Supreme Court instituted the now-established procedure of the Anders brief:

  1. Following conviction, if counsel, after a conscientious examination of the case, believes that all imaginable points of error are purely frivolous, then counsel must (a) file a brief with the appellate court detailing the reasoning for that belief and referring to anything in the record which might arguably support the appeal, and (b) request permission to be removed from representation.
  2. A copy of counsel's brief must be furnished to the indigent defendant, who may file a pro se brief, thus allowing him to raise any points that he chooses.
  3. The appellate court must then examine the record and decide whether the appeal is wholly frivolous.
  4. If the court agrees that the appeal is frivolous, it may grant counsel's request to withdraw and affirm the conviction. If, on the other hand, it finds any of the legal points arguable on the merits (and therefore not frivolous) it must remand the cause to the trial court so that new counsel may be appointed to brief the issues.

In Garner, the CCA determined whether the lower court's lengthy opinion analyzing and discussing the reasoning behind its holding that the appeal was frivolous, was implicitly a determination that there were "arguable grounds" for review. In affirming the Tenth Court of Appeals' decision, the CCA held that when a court of appeals find no issues of arguable merit in an Anders brief, it may explain why the issues have no arguable merit.