Roy Garcia Jr. v. State

COURT OF APPEALS FOR THE
FIRST DISTRICT OF TEXAS AT HOUSTON
ORDER
Appellate case name: Roy Garcia Jr. v. The State of Texas
Appellate case number: 01-19-00940-CR
Trial court case number: 1564875
Trial court: 183rd District Court of Harris County
Appellant pleaded guilty without an agreed recommendation as to punishment to the felony
offense of murder. Following a sentencing hearing, the trial court sentenced appellant to life
imprisonment. Appellant’s appointed counsel filed a motion to withdraw, along with an Anders
brief concluding that the appeal is frivolous. See Anders v. California, 386 U.S. 738, 744 (1967).
We find the brief filed by appointed counsel to be deficient.
The Anders brief filed in this appeal fails to assure this court that appointed counsel has
adequately reviewed the record to professionally evaluate whether there are any nonfrivolous
appellate issues. See id. at 744. First, although a reporter’s record was filed, the Anders brief was
filed prior to the filing of the clerk’s record and fails to include any citations to the record.
Counsel’s brief does not provide any indication that counsel has seen or reviewed a copy of the
clerk’s record. Second, the Anders brief is cursory, consisting of only two pages of substance
generally asserting that appellant pleaded guilty to murder, his life sentence is within the applicable
punishment range, and trial counsel was not ineffective. The brief provides no further description
of relevant facts, including whether there were any adverse rulings on pretrial or posttrial motions
and whether there were any adverse rulings during the punishment phase.
By failing to provide a professional evaluation of the record, counsel’s brief provides no
aid to appellant or to this Court, and it fails to meet the requirements of Anders. See McCoy v.
Court of Appeals of Wisc., Dist. 1, 486 U.S. 429, 442, 108 S. Ct. 1895, 1903–04 (1988) (requiring
appellate court, in addition to determining whether counsel correctly determined that appeal is
frivolous, to “satisfy itself that the attorney has provided the client with a diligent and thorough
search of the record for any arguable claim that might support the client’s appeal); Anders, 386
U.S. at 744–45 (requiring counsel to file brief that assists client by evaluating all potential grounds
for appeal and aids Court in evaluating record); High v. State, 573 S.W.2d 807, 812 (Tex. Crim.
App. 1978) (requiring “brief of counsel to contain a professional evaluation of the record
demonstrating why, in effect, there are no arguable grounds to be advanced”).
Accordingly, we strike counsel’s deficient Anders brief and order counsel to file a new
brief within 30 days of this order. See Stafford v. State, 813 S.W.2d 503, 510 (Tex. Crim. App.
1991); Banks v. State, 341 S.W.3d 428, 432 (Tex. App.—Houston [1st Dist.] 2009, order), disp.
on merits, No. 01-08-00286-CR, 2010 WL 1053218 (Tex. App.—Houston [1st Dist.] March 11,
2010, no pet.). Counsel may file either a brief on the merits or a proper Anders brief demonstrating
a conscientious examination of the record. If counsel fails to file an adequate brief within 30 days
of this order, then we will abate the appeal and remand the cause for the trial court to appoint new
appellate counsel.
It is so ORDERED.
Judge’s signature: ___/s/ Sarah B. Landau_________
Acting individually
Date: ___May 5, 2020___