Lorenza Andre Sam v. State , 2015 Tex. App. LEXIS 5167 ( 2015 )

Corrected, Motion Granted and Order filed May 21, 2015
In The
Fourteenth Court of Appeals
NO. 14-13-00840-CR
LORENZA SAM, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 240th District Court
Fort Bend County, Texas
Trial Court Cause No. 10-DCR-55360A
ORDER
Appellant, Lorenza Sam was indicted and tried for the offense of capital
murder pursuant to section 19.03(b)(2) of the Texas Penal Code. A jury convicted
appellant, and the trial court assessed punishment at life imprisonment without the
possibility of parole. Appellant’s appointed counsel on appeal, the same attorney
who represented appellant at trial, has filed a brief in which he concludes the
appeal is wholly frivolous and without merit. See Anders v. California, 386 U.S.
738 (1967); High v. State, 573 S.W.2d 807 (Tex. Crim. App. 1978). A copy of
counsel’s brief was delivered to appellant. Appellant was advised of his right to
examine the record and file a pro se response. See Stafford v. State, 813 S.W.2d
503, 510 (Tex. Crim. App. 1991) (en banc). At appellant’s request, the record was
provided to him. Appellant filed a “Motion for an extension of time to file a Pro Se
Response to Counsel’s Anders brief.” We need not address the request for an
extension as it is now moot.
Anders mandates that counsel appointed on the first stage of a criminal
appeal support that appeal to the best of his ability, and may withdraw only upon
concluding that the case is wholly frivolous. 386 U.S. at 744. Upon determining
that the appeal is frivolous, counsel must withdraw. Id. The U.S. Supreme Court
has provided the following guidance:
[Counsel’s] role as advocate requires that he support his client’s
appeal to the best of his ability. Of course, if counsel finds his case to
be wholly frivolous, after a conscientious examination of it, he should
so advise the [appellate] court and request permission to withdraw.
That request must, however, be accompanied by a brief referring to
anything in the record that might arguably support the appeal. . . .
[T]he [appellate] court—not counsel—then proceeds, after a full
examination of all the proceedings, to decide whether the case is
wholly frivolous. . . . [I]f it finds any of the legal points arguable on
their merits (and therefore not frivolous) it must, prior to decision,
afford the indigent the assistance of counsel to argue the appeal.
Id. Any issue that is “arguable on [the] merits” is, by definition, not frivolous. See
id. A “wholly frivolous” appeal is one that “lacks any basis in law or fact.” McCoy
v. Court of Appeals, 486 U.S. 429, 438 n.10 (1988).
This court, although it may not act as an advocate, is required to thoroughly
and independently review the entire record, including matters not addressed in the
Anders brief, before determining that the appeal is wholly frivolous. Randle v.
2
State, 760 S.W.2d 30, 32 (Tex. App.—Houston [1st Dist.] 1988, no pet.). Our
review here has led us to the conclusion that the case contains arguable error not
discussed in the Anders brief.
Additionally, this case presents us with the issue of whether it is appropriate
for appointed appellate counsel, who was also appellant’s trial counsel, to file an
Anders brief. Two Texas courts of appeal have considered this issue and reached
opposite conclusions. Compare Chandler v. State, 988 S.W. 2d 827(Tex. App -
Dallas 1999, no pet.) with Velasquez v. State, 12 S.W. 3d 584(Tex. App - San
Antonio 2000, pet. ref’d).1
Appellate counsel must master the trial record, thoroughly research the law,
and exercise his judgment in identifying the arguments that may be advanced on
appeal. McCoy, 486 U.S. at 438. The effectiveness of trial counsel is one of the
issues that must be researched and analyzed in an Anders brief. Jeffery v. State, 903
S.W.2d 776, 779 (Tex. App.—Dallas 1995, no pet.). Appellate counsel may have
bias and prejudice in evaluating his own performance at trial. Id. at 438 n.4.
Moreover, trial counsel who does not understand the law or who improperly failed
to develop the facts during trial may not recognize the same as an error on appeal.
See Chandler, 988 S.W.2d at 828. Accordingly, we find it is not appropriate for
appointed appellate counsel to file an Anders brief in a case in which counsel also
served as trial counsel. See id. Rather, if appellate counsel, who also served as trial
counsel, reaches a point where he believes the appeal is frivolous and that an
Anders brief is appropriate, then counsel should file a motion to withdraw with this
court, explaining the conflict. See id. (citing Tex. R. App. P. 6.5). This court may
1
Although it initially did not answer the question, the Dallas Court of Appeals has
consistently recognized ‘the bias and prejudice an attorney may have in evaluating on appeal his
own performance on trial.” Jeffery v. State, 903 S.W.2d 776, 779 n.4 (Tex. App – Dallas 1995,
no pet.)
3
then abate the appeal to the trial court for appointment of new appellate counsel,
who then is free to pursue the appeal or to file an Anders brief if appropriate based
on his independent review of the record A trial court may avoid this conflict
altogether by appointing new counsel to handle the appeal. See Chandler, 988
S.W.2d at 828.
For these reasons, we strike appellate counsel’s brief, grant the motion to
withdraw, and abate this appeal to the trial court with instructions to appoint other
counsel and have a supplemental clerk’s record containing that appointment filed
with the clerk of this court within thirty (30) days of the date of this order.
_____________________________
Marc W. Brown
Justice
Panel consists of Justices Christopher, Brown and Wise.
Publish — Tex. R. App. P. 47.2(b).
4