Carol Jean Stanley v. State , 2015 Tex. App. LEXIS 4719 ( 2015 )

IN THE
TENTH COURT OF APPEALS
No. 10-14-00320-CR
CAROL JEAN STANLEY,
Appellant
v.
THE STATE OF TEXAS,
Appellee
From the 19th District Court
McLennan County, Texas
Trial Court No. 2012-1589-C1
ORDER
Appellant, Carol Jean Stanley, was convicted of two counts of possession of a
controlled substance and sentenced to 18 months in a state jail facility. See TEX. HEALTH
& SAFETY CODE ANN. § 481.115 (West 2010). The sentence was suspended, and
appellant was placed on community supervision for three years. Ten months later,
appellant pled true to several violations noted in the State’s motion to revoke
appellant’s community supervision. Appellant’s community supervision was revoked
for each conviction, and appellant was sentenced to 18 months in a state jail facility.
Counsel for appellant filed an Anders1 brief. In accordance with the Court of
Criminal Appeals’ opinion in Kelly v. State, counsel prepared and sent to appellant an
Appellant’s Motion for Access to Appellate Record. See Kelly v. State, 436 S.W.3d 313,
315 & 320 (Tex. Crim. App. 2014). Appellant signed the motion for access and sent it to
this Court.2 It was filed on January 2, 2015.
Prior to the Court of Criminal Appeals’ opinion in Kelly, in the extremely few
instances where the appellant requested access to the record to prepare a response to
counsel’s motion to withdraw and Anders brief, the Court would notify the defendant
that the record was available from the trial court clerk and provide the trial court clerk’s
address. If the trial court clerk failed or refused to provide the record upon request by
the defendant, we would then order the clerk to provide the record as requested. See
e.g. Brown v. State, 10-08-00180-CR, letter order of March 24, 2009.3 Because the Anders
procedures were modified by the Court of Criminal Appeals in Kelly, and in
1 Anders v. California, 386 U.S. 738, 87 S. Ct. 1396, 18 L. Ed. 2d 493 (1967).
2We note that motions using the instructions prescribed in Kelly, which are prepared by counsel and filed
by an appellant, are inherently deficient because they do not contain proof of service nor is a copy filed
with the court as required by the Texas Rules of Appellate Procedure. See TEX. R. APP. P. 9.3(a)(1). See
Kelly, 436 S.W.3d at 320 (“…counsel should include in his letter to the appellant a form motion for this
purpose, lacking only the appellant's signature and the date, and inform the appellant that, in order to
effectuate his right to review the appellate record pro se, should he choose to invoke it, he must sign and
date the motion and send it on to the court of appeals within ten days of the date of the letter from
appellate counsel.”).
3 Subsequent to the trial court clerk providing the record to the defendant in Brown, the State had to
request an extension of time in which to file its response because Brown had failed and refused to return
the record to the trial court clerk. Brown subsequently filed a motion for a free record, presumably for
purposes other than filing his response to counsel’s Anders brief, as that response had already been filed.
Stanley v. State Page 2
anticipation that more appellants would be seeking access to the record, this Court
reevaluated its Anders procedures, both the methods and responsibility, which allows
an appellant to obtain access to the record. See Kelly, 436 S.W.3d at 318. (“[W]e believe
that the courts of appeals also have an on-going responsibility, once an appellant
manifests his desire for pro se record access, to officially guide the process and follow
through to make sure that such access is granted before they rule on the validity of
appointed counsel's Anders brief and motion to withdraw.”).
The first issue that was resolved upon the reevaluation of our procedures was
that when the appellant filed a motion seeking access to the record, we would order
counsel to provide the record to the appellant. We recognized that to perform the duty
required by Anders, counsel would have had to review the entire record. Thus, it was
logical to require counsel, who at that time still represents the appellant, to provide the
appellant access to the record. Hall v. State, No. 10-14-00205-CR (Tex. App.—Waco Dec.
18, 2014, order) (not designated for publication).
This requirement is entirely consistent with the Court’s opinion in Kelly.
[T]he Sixth Court has adopted a policy that appellate counsel "has
the responsibility to procure a copy of the record for appellant to review
in preparation of the pro se response to the Anders brief… We agree with
the Sixth Court that appellate counsel has a continuing responsibility to
his client, extending beyond the filing of a motion to withdraw and
Anders brief, to facilitate the appellant's access to the appellate record
should the appellant so desire.
Kelly v. State, 436 S.W.3d 313, 318 (Tex. Crim. App. 2014).
Stanley v. State Page 3
In placing this burden on appointed counsel, we were intentionally nonspecific
in the source and form of the record that was to be provided to the appellant. Counsel
could prepare and provide a duplicate copy or simply provide the copy obtained from
the trial court clerk pursuant to Texas Rule of Appellate Procedure 34.5(g) (clerk’s
record) and 34.6(b) (reporter’s record). The purpose was to allow counsel discretion as
to the most efficient method of providing a complete record to the appellant.
In deciding Hall, we left open the question of where we would place the burden
in the event counsel notified the Court that counsel was no longer in possession of a
copy of the record. Today, we must decide that issue.
Appellant’s Motion for Access to Appellate Record was granted on February 5,
2015. Based on our precedent in Hall, counsel was ordered to forward the copy of the
record used to conduct the review for the Anders brief to appellant and to
simultaneously notify this Court and the District Clerk when counsel had completed
this task. But, if counsel no longer possessed a copy of the record, counsel was required
to notify this Court within 7 days from the date of the Order; in which event, further
orders addressing appellant’s access to the record would be made.
Counsel has notified this Court that counsel no longer possesses a copy of the
record.
Stanley v. State Page 4
Accordingly, we now specify the procedure to be followed to provide an
appellant with access to the appellate record, even if counsel no longer possesses the
copy of the record used in counsel’s review for the Anders brief.
Counsel is ORDERED to obtain and send appellant, within 21 days from the date
of this order, copies of the clerk’s and reporter’s records and to simultaneously notify
this Court, the State, the trial court, and the trial court clerk when counsel has
completed this task. Counsel must also notify appellant and this Court if the record
made available to appellant must be returned to the trial court clerk.
By placing the burden on appointed counsel, we again rely upon the fact that
counsel is appointed to represent the appellant, is still representing the appellant at this
stage of the proceeding, and is in the best position to obtain and provide a copy of the
record for the appellant’s use. See Kelly v. State, 436 S.W.3d 313, 319 (Tex. Crim. App.
2014) (“Appointed counsel's duties of representation, therefore, do not cease simply
because he has submitted a motion to withdraw, along with supporting Anders brief, in
the court of appeals. Until such time as the court of appeals relieves him of this
professional obligation, appellate counsel must continue to ‘act with competence,
commitment and dedication to the interest of the client and with zeal in advocacy upon
the client's behalf.’”). The appellant, who is most often in prison at this point in time, is
at a disadvantage in making requests to obtain the record from the trial court clerk. The
trial court clerk knows there is appointed counsel and could be understandably
Stanley v. State Page 5
reluctant to respond to a request for a copy of the record from an inmate. See TEX. R.
JUD. ADMIN. 12.4 (a)(4). See also Kelly, 436 S.W.3d at 320 n. 21 (“the trial court is unlikely
to be aware of the progress of the appeal, appointed counsel's motion to withdraw with
attendant Anders brief, or the fact that the appellant's pro se right to review the
appellate record has been triggered. The trial court, perhaps assuming that a pro se
motion for access to the appellate record is, at best, nothing more than an impermissible
attempt at hybrid representation on appeal, may well choose to simply ignore it.”).
Further, it may be necessary for counsel to explain to the appellant why certain
parts of the record are not available to an appellant due to the nature of the testimony
or exhibits. Finally, it is counsel, and not the district court clerk, that is in the best
position to work with the wardens, guards, and prison librarians to facilitate an
inmate’s access to the record for review in preparation of a response.4
Counsel is reminded that there are certain rules and statutes that prohibit certain
sensitive or illegal information from being included in a public record. See TEX. R. APP.
P. 9.10. If counsel has identified any such information while conducting the review of
the record as necessary to prepare the Anders brief in support of counsel’s motion to
4 In light of this announced procedure, counsel that files an Anders brief may elect to retain the record
used in counsel’s review until it can be determined whether the appellant will seek a copy of the record to
review in preparation of the appellant’s pro se response. Moreover, given the brevity of most records in
Anders appeals, counsel may find it most efficient to provide the appellant a copy of the record at the time
counsel provides a copy of the motion to withdraw and brief in support. This may be especially easy in
cases wherein the record, even the rare large record in Anders appeals, can be reduced to a compact disc
that can be very inexpensive to duplicate and mail.
Stanley v. State Page 6
withdraw, counsel should take appropriate steps to redact or in some manner remove
that information from the copy of the record that is being provided to appellant.
Appellant is ORDERED to file his pro se response to counsel’s Anders brief
within 45 days from the date counsel sends notice to the Court that the record has been
forwarded to appellant, unless the due date is extended by order of this Court upon
proper and timely motion by appellant. If counsel notified appellant and this Court
that the record being provided to appellant was obtained from the trial court clerk and
must be returned thereto, appellant is ORDERED to not take the record apart or mark
on or modify the record.
If the record must be returned to the trial court clerk, so that its return to the trial
court clerk can be monitored and enforced, Appellant is ORDERED to send the record
to this Court with appellant’s response. If no response is filed, but nevertheless, the
record must be returned to the trial court clerk, appellant is ORDERED to send the
record to this Court within 60 days of the date the attorney sends notice to the Court
that the record was forwarded to the appellant, unless the due date is extended by
order of this Court upon proper and timely motion by appellant.
Appellant’s failure to comply with this Order, including the failure to send the
record to this Court within the time specified, if herein required, may result in the
dismissal of the appeal under our inherent authority upon the presumption that the
record was obtained under false pretense and with no intent to pursue the appeal but
Stanley v. State Page 7
instead was obtained for the purposes of delay. See e.g. Ealy v. State, 222 S.W.3d 744, 745
(Tex. App.—Waco 2007, no pet.).
PER CURIAM
Before Chief Justice Gray,
Justice Davis, and
Justice Scoggins
(Justice Davis dissenting)
Order issued and filed May 7, 2015
Publish
Stanley v. State Page 8