Anders Guidelines

If you plan to file an Anders brief in a criminal case, you must ensure and demonstrate compliance with Anders v. California, 386 U.S. 738 (1967) and Kelly v. State, PD-0702-13, 2014 WL 2865901, at **1–4 (Tex. Crim. App. June 25, 2014). Counsel must file (1) a motion to withdraw, and (2) a brief in support thereof in which counsel states that they have diligently reviewed the entire record and have concluded that there is no reversible error. See Anders, 386 U.S. at 744; High v. State, 573 S.W.2d 807, 813 (Tex. Crim. App. [Panel Op.] 1978). Counsel must: (1) notify the appellant that counsel has filed an Anders brief and a motion to withdraw; (2) provide the appellant with copies of both pleadings; (3) inform the appellant of appellant's rights to file a pro se response, review the record preparatory to filing that response, and seek discretionary review if this Court concludes that the appeal is frivolous; and (4) provide appellant with a form motion for pro se access to the appellate record, lacking only the appellant's signature and the date and including the mailing address for the court of appeals, with instructions to file the motion within ten days. See Anders, 386 U.S. at 744; Kelly, 2014 WL 2865901, at **3–4. Further, counsel must inform this Court, in writing, that counsel has met the foregoing requirements. Kelly, 2014 WL 2865901, at **3–4.

Counsel should inform the appellant that the pro se response, if any, should identify for the Court those issues which the appellant believes the Court should consider in deciding whether the case presents any meritorious issues. In re Schulman, 252 S.W.3d 403, 409 n.23 (Tex. Crim. App. 2008) (orig. proceeding).

If the Court affirms an Anders, case, counsel must, within five days of the date of the opinion, send a copy of the opinion and judgment to their client and advise their client of their right to file a petition for discretionary review. See TEX. R. APP. P. 48.4; see also In re Schulman, 252 S.W.3d at 412 n.35. As with any brief, compliance with Texas Rule of Appellate Procedure 38 is required.

In order to comply with Anders in a guilty plea case, counsel should examine the following areas of the record and law and expressly address them in the brief.

1. Sufficiency of the indictment or misdemeanor information.
2. Any adverse pretrial rulings, including but not limited to rulings on motions to suppress, motions to quash, and motions for speedy trial.
3. Compliance with Texas Code of Criminal Procedure 26.13 and, if appropriate, Padilla v. Kentucky, 130 S. Ct. 1477 (U.S. 2010).
4. Whether the issue of competency was raised prior to sentencing, so as to warrant an inquiry by the court, and whether appellant was mentally competent when the court accepted the plea.
5. Whether appellant's plea was freely and voluntarily made.
6. Any adverse rulings during the sentencing hearing on objections or motions.
7. Any failure on the part of appellant's trial counsel to object to fundamental error.
8. Whether the sentence imposed was within the applicable range of punishment.
9. Whether the written judgment accurately reflects the sentence that was imposed and whether any credit was properly applied.
10. Whether there is evidence to support a guilty plea in a felony case.
11. Examination of the record to determine if the appellant was denied effective assistance of counsel.

In order to comply with Anders in a jury or bench trial case, case, counsel should examine the following areas of the record and law and expressly address them in the brief.

1. Sufficiency of the indictment.
2. Any adverse pretrial rulings affecting the course of the trial, including but not limited to rulings on motions to suppress, motions to quash, and motions for a speedy trial.
3. Any adverse rulings during trial on objections or motions, including but not limited to objections regarding the admission or exclusion of evidence, objections premised on prosecutorial or judicial misconduct, and motions for mistrial.
4. Any adverse rulings on post-trial motions, including motions for a new trial.
5. Jury selection [not applicable in a bench trial].
6. Jury instructions [not applicable in a bench trial].
7. Sufficiency of the evidence, including a recitation of the elements of the offense(s) and facts and evidence adduced at trial relevant to the offense(s) upon which conviction is based.
8. Any failure on the part of appellant's trial counsel to object to fundamental error.
9. Any adverse rulings during the punishment phase on objections or motions.
10. Whether the sentence was within the applicable range of punishment.
11. Whether the written judgment accurately reflects the sentence that was imposed and whether any credit was properly applied.
12. Examination of the record to determine if appellant was denied effective assistance of counsel.