IN THE COURT OF CRIMINAL APPEALS
OF TEXAS
NO. AP-75,911
IN RE DAVID SCHULMAN
ON APPLICATION FOR WRIT OF MANDAMUS
IN CAUSE N0. 07-07-0066-CR FROM THE
SEVENTH COURT OF APPEALS
WILLIAMSON COUNTY
C OCHRAN, J., delivered the opinion of the unanimous Court.
OPINION
Mr. David Schulman, the appointed appellate attorney for Marlyn Solanas, filed an
application for a writ of mandamus with this Court claiming that the Seventh Court of
Appeals violated a ministerial duty when it ordered him to file a motion to withdraw as
counsel along with his Anders1 brief. That brief concludes, as all Anders briefs conclude,
that his client’s appeal is “frivolous,” but Mr. Schulman argues that, while counsel for the
1
Anders v. California, 386 U.S. 738 (1967).
In re Schulman Page 2
defense may file an Anders brief, he is not obligated to simultaneously file a motion to
withdraw from representation. This is backwards. Under both Supreme Court and Texas
precedent, when counsel files a motion to withdraw because he believes the appeal is
frivolous, he may simultaneously file an Anders brief. An Anders brief may not be filed
without a motion to withdraw, as the sole purpose of an Anders brief is to explain and
support the motion to withdraw. The court of appeals did not err, much less violate a
ministerial duty. We therefore deny relief on this application for a writ of mandamus.
I.
Pursuant to a plea bargain, Marlyn Solanas pled guilty to intoxication manslaughter
in Williamson County. She was sentenced to ten years’ confinement and a $2,500 fine, but
the trial court placed her on community supervision. Over a year later, the State filed a
motion to revoke, alleging that she had violated terms of her community supervision. Ms.
Solanas pled “True” to the State’s allegations, and the trial judge revoked her community
supervision and sentenced her to ten years’ imprisonment.
Ms. Solanas filed a timely notice of appeal and Relator, Mr. David Schulman, was
appointed to represent her. The appeal was transferred to the Seventh Court of Appeals in
Amarillo. On May 8, 2007, Mr. Schulman filed an Anders brief with the court of appeals and
mailed a copy of this brief to Ms. Solanas, informing her of his actions and of her right to
review the record of the proceedings and submit a pro se brief if she so desired.
Mr. Schulman did not simultaneously file a motion to withdraw as counsel with the
In re Schulman Page 3
court of appeals, although the clerk of the court informed him that he was required to do so.
Instead, he filed a document entitled “Response to Clerk’s Instructions Regarding Motion
to Withdraw.” He explained that, under Article 26.04(j)(2) of the Code of Criminal
Procedure, he was required to “represent the defendant until charges are dismissed, the
defendant is acquitted, appeals are exhausted, or the attorney is relieved of his duties by the
court or replaced by other counsel after a finding of good cause is entered on the record.” 2
Mr. Schulman also stated that he was required to inform his client of her right to file a pro
se petition for discretionary review to this Court even though he filed an Anders brief.3 He
noted that prior cases also implied that he must continue to answer questions posed by his
client that “are reasonably related to this case and/or the procedures to be followed in seeking
further review.” Mr. Schulman argued that, from a moral standpoint, “his duty to assist [his
client] is not and cannot be extinguished by the filing of an Anders brief.” 4 Finally, Mr.
Schulman lamented that “the procedures used in the various Courts of Appeals regarding this
issue are wholly inconsistent. Some courts of appeals require counsel to file a motion to
2
T EX . CODE CRIM . PROC. art. 26.04(j)(2); see also TEX . R. APP . P. 6.5 (“An appellate
court may, on appropriate terms and conditions, permit an attorney to withdraw from
representing a party in the appellate court.”).
3
See Ex parte Owens, 206 S.W.3d 670 (Tex. Crim. App. 2006) (holding that the filing of
an Anders brief in the court of appeals does not relieve defense counsel of the duty to inform a
defendant that he has a right to file a pro se petition in the Court of Criminal Appeals).
4
Mr. Schulman also advised the court of appeals that “in at least two-thirds of the case[s]
in which the undersigned has filed an Anders brief during his career, he has subsequently been
contacted by those clients seeking advice on procedural questions pertaining to either the Anders
brief or the appeal in general.”
In re Schulman Page 4
withdraw, some take no position, others do not require counsel to withdraw.” He requested
that the Seventh Court of Appeals abandon its “policy” of requiring an attorney who files an
Anders brief to simultaneously file a motion to withdraw as counsel.
After receiving Mr. Schulman’s response, the court of appeals entered an order
requesting him to reconsider his refusal to file a motion to withdraw and afforded him
additional time to do so.5 The court noted that Mr. Schulman’s response was “very
principled,” but his “insistence on his duty to represent Appellant after the filing of an
Anders brief is misplaced and is, in fact, an impediment to this Court’s role in reviewing an
Anders appeal.” 6 Instead of complying with the court’s order, Mr. Schulman filed an
application for writ of mandamus and/or prohibition with this Court. We entered an order
granting Mr. Schulman’s motion to stay the proceedings and affording the court of appeals
an opportunity to respond. The Office of the Attorney General of Texas filed a response on
behalf of the court of appeals. We filed and set this matter for consideration.
II.
A criminal defense attorney’s duty is to zealously represent the interests of his client
on appeal.7 If the appointed attorney finds the “case to be wholly frivolous, after a
5
Solanas v. State, No. 07-07-0066-CR (Tex. App.– Amarillo, May 25, 2007) (per curiam
order) (not designated for publication).
6
Id. at 4.
7
Anders, 386 U.S. at 744. Anders was not the first Supreme Court opinion dealing with
the appointed attorney’s duty of zealous representation on appeal or of his obligation to file a
motion to withdraw as counsel when he determines that an appeal would be frivolous. In Ellis v.
In re Schulman Page 5
conscientious examination of it, he should so advise the court and request permission to
withdraw.” 8 It is the motion to withdraw that is required in this situation. The so-called
“Anders” brief accompanies the motion to withdraw as an assurance to the appellate court
that the attorney has indeed made a thorough and conscientious examination of the record,
has provided the appellate court with the appropriate facts of the case and its procedural
history, and has pointed out any potentially plausible points of error.9 In Anders, the
United States, 356 U.S. 674 (1958), decided nine years before Anders, the Supreme Court stated:
If counsel is convinced, after conscientious investigation, that the appeal is
frivolous, of course, he may ask to withdraw on that account. If the court is
satisfied that counsel has diligently investigated the possible grounds of appeal,
and agrees with counsel’s evaluation of the case, then leave to withdraw may be
allowed and leave to appeal may be denied.
Id. at 675.
8
Anders, 386 U.S. at 744; see also McCoy v. Court of Appeals of Wisconsin, District I,
486 U.S. 429, 437 (1988) (stating that both retained and appointed appellate attorneys have a
“duty to withdraw” as counsel when they conclude that an appeal would be frivolous, but noting
that appointed counsel “is presented with a dilemma because withdrawal is not possible without
leave of court, and advising the court of counsel’s opinion that the appeal is frivolous would
appear to conflict with the advocate’s duty to the client. It is well settled, however, that this
dilemma must be resolved by informing the court of counsel’s conclusion.”); Wilson v. State, 40
S.W.3d 192, 196 (Tex. App.– Texarkana 2001) (“Under Anders and its progeny, if an appointed
attorney concludes that his client's appeal is without merit, he must (1) so inform the court, (2)
seek permission to withdraw, and (3) file a brief ‘referring to anything in the record that might
arguably support the appeal.’”) (quoting McCoy and Anders).
9
See Anders, 386 U.S. at 744. As the Supreme Court explained, the attorney’s motion to
withdraw
must, however, be accompanied by a brief referring to anything in the record that
might arguably support the appeal. A copy of counsel’s brief should be furnished
the indigent and time allowed him to raise any points that he chooses; the court–
not counsel–then proceeds, after a full examination of all the proceedings, to
decide whether the case is wholly frivolous. If it so finds it may grant counsel’s
request to withdraw and dismiss the appeal insofar as federal requirements are
concerned, or proceed to a decision on the merits, if state law so requires.
Id. In Texas, an Anders brief need not specifically advance “arguable” points of error if counsel
In re Schulman Page 6
Supreme Court held that the appellate attorney could not fulfill his obligation to represent his
client by filing a letter merely stating that he has concluded that the appeal is frivolous.10
Such a “no-merit letter,” setting out nothing more than a “bare conclusion,” is not enough
to assure the appellate courts that the attorney has made a thorough review of the record and
the applicable law, but has nonetheless concluded that there is no plausible basis for appeal.11
The attorney’s duty to withdraw is based upon his professional and ethical
responsibilities as an officer of the court not to burden the judicial system with false claims,
frivolous pleadings, or burdensome time demands. The Supreme Court has stated,
Neither paid nor appointed counsel may deliberately mislead the court with
respect to either the facts or the law, or consume the time and the energies of
the court or the opposing party by advancing frivolous arguments. An
attorney, whether appointed or paid, is therefore under an ethical obligation to
refuse to prosecute a frivolous appeal.12
finds none, but it must provide record references to the facts and procedural history and set out
pertinent legal authorities. See Hawkins v. State, 112 S.W.3d 340, 343-44 (Tex. App.–Corpus
Christi 2003, no pet.).
10
Id. at 742-43. In Anders, the appointed appellate attorney wrote the court of appeals the
following letter:
I will not file a brief on appeal as I am of the opinion that there is no merit
to the appeal. I have visited and communicated with Mr. Anders and have
explained my views and opinions to him . . . . He wishes to file a brief in this
matter on his own behalf.
Id. at 742.
11
Id. at 742-44.
12
McCoy, 486 U.S. at 436 (citing ABA Standards for Criminal Justice, Commentary to
4–3.9 (2d ed. 1980)). The Supreme Court then quoted the Seventh Circuit:
A lawyer, after all, has no duty, indeed no right, to pester a court with frivolous
arguments, which is to say arguments that cannot conceivably persuade the court,
so if he believes in good faith that there are no other arguments that he can make
In re Schulman Page 7
Counsel’s obligation to his client is to seek leave to withdraw as counsel. His
obligation to the appellate courts is to assure them, through the mechanism of an Anders
brief, that, after thorough investigation and research, his request is well founded.13
The Anders brief reflects the fact that the appointed attorney has adequately
researched the case before requesting to withdraw from further representation. It also sets
out the attorney’s due diligence investigation on behalf of his client. It has an additional use
for the appellate courts: it provides them with a roadmap for their review of the record
because the court itself must be assured that the attorney has made a legally correct
determination that the appeal is frivolous. 14 It has an additional use for the defendant: it
on his client's behalf he is honorbound to so advise the court and seek leave to
withdraw as counsel.
Id. (quoting United States v. Edwards, 777 F.2d 364, 365 (7th Cir.1985) (emphasis added)).
As Professors Dix and Dawson have explained in their treatise,
States have a legitimate interest in being able to develop and implement
procedures which identify frivolous appeals and permit resolution of them without
the cost of providing the defendant-appellant with counsel’s help in preparing and
submitting a full merits brief. Such procedures must also, of course, protect other
appellants with nonfrivolous appeals from being denied their right to full
assistance of counsel in pursuing those nonfrivolous appeals.
42 GEORGE E. DIX & ROBERT O. DAWSON , TEXAS PRACTICE : CRIMINAL PRACTICE AND
PROCEDURE § 24.148, at 327 (2d ed. 2001).
13
See Johnson v. State, 885 S.W.2d 641, 647 n.1 (Tex. App.–Waco 1994, pet. ref’d),
modified by Wilson v. State, 955 S.W.2d 693 (Tex. App.– Waco 1997, no pet.) (“After
concluding that the appeal is frivolous, the attorney is under a duty to request permission from
this court to withdraw from the appeal”; stating that an Anders brief is “a brief in support of the
motion to withdraw”).
14
See Anders, 386 U.S. at 745 (noting that the Anders brief would “induce the court to
pursue all the more vigorously its own review because of the ready references not only to the
record, but also to the legal authorities as furnished by counsel.”); High v. State, 573 S.W.2d 807,
811 (Tex. Crim. App. [panel op.] 1978) (by filing an Anders brief “which supplies ready
references to the record and legal authorities, counsel aids the reviewing court in studying a cold
In re Schulman Page 8
provides him with appropriate citations to the record if he wishes to exercise his right to file
a pro se brief.15 And it has an additional use for the appointed attorney: it protects him
“from the constantly increasing charge that he was ineffective and had not handled the case
with that diligence to which an indigent defendant is entitled.” 16 Despite its helpfulness to
all concerned, the Anders brief is only the proverbial “tail”; the motion to withdraw is “the
dog.” 17
Of course, the Anders procedure is not constitutional dogma. It is “merely one method
of satisfying the requirements of the Constitution for indigent criminal appeals.” 18 Texas is
free to adopt other procedures as long as they meet federal constitutional requirements.19
Although Texas may choose to adopt a different mechanism for dealing with frivolous
appeals, it has thus far followed the Anders procedure.20
record.”).
15
See Anders, 386 U.S. at 744 (noting that the attorney must furnish his indigent client
with a copy of the Anders brief referring to anything in the record that might arguably support the
appeal,” and that defendant may “raise any points that he chooses” in a pro se brief).
16
Anders, 386 U.S. at 745.
17
See Jeffrey v. State, 903 S.W.2d 776, 779-80 (Tex. App.–Dallas 1995, no pet.)
(discussing Anders procedure and stating that “[i]f an attorney believes the appeal is frivolous, he
must withdraw from representing the appellant. To withdraw from representation, the appointed
attorney must file a motion to withdraw accompanied by a brief showing the appellate court that
the appeal is frivolous.”) (citations omitted).
18
Smith v. Robbins, 528 U.S. 259, 276 (2000).
19
Id.
20
High v. State, 573 S.W.2d 807, 813 (Tex. Crim. App. [panel op.]1978) (adopting the
Anders procedure and suggesting that the Supreme Court mandated that particular procedure for
In re Schulman Page 9
Although the defense attorney is required to file a motion to withdraw at the same time
that he files an Anders brief, the court of appeals will not grant that motion until:
(1) the attorney has sent a copy of his Anders brief to his client along with a letter
explaining that the defendant has the right to file a pro se brief within thirty
days, and he has ensured that his client has, at some point, been informed of
his right to file a pro se PDR;21
(2) the attorney has informed the court of appeals that he has performed the above
duties;22
federal constitutional purposes); see also Stafford v. State, 813 S.W.2d 503, 509-11 (Tex. Crim.
App. 1991). In this Court’s most recent cases, Ex parte Owens, 206 S.W.3d 670 (Tex. Crim.
App. 2006), and Meza v. State, 206 S.W.3d 684 (Tex. Crim. App. 2006), we have continued to
apply the Anders brief procedures.
21
See Stafford, 813 S.W.2d at 510. A defendant who fails to keep his attorney informed
of his current address forfeits the right to receive a copy of the Anders brief and the right to file a
pro se brief. Gonzales v. State, 903 S.W.2d 404, 405 (Tex. App.–Texarkana 1995, no pet.).
22
See Johnson v. State, 885 S.W.2d 641, 647 n.1 (Tex. App.–Waco 1994, pet. ref’d),
modified by Wilson v. State, 955 S.W.2d 693 (Tex. App.– Waco 1997, no pet.) (noting that
“[a]lthough a variety of methods of demonstrating that the client has been informed of his pro-se
rights have been utilized and accepted by the courts, we believe that the best approach is to
provide this court a copy of a letter sent to the defendant with the attorney's brief in support of
the motion to withdraw in which counsel has outlined the defendant’s pro-se rights and the steps
necessary to exercise those rights.”).
Under the newly revised Rule 25.2 of the Texas Rules of Appellate Procedure and the
revised Certificate of Appeal form, the defendant will have been informed of his right to file a
pro se PDR at the time that he makes a decision to file a notice of appeal. TEX . R. APP . P.
25.2(d), (e), (h); Appendix (Certification of Defendant’s Right of Appeal). This information will
be repeated at the time that counsel sends the defendant a copy of the court of appeals’s opinion
if the defendant has kept the attorney informed of his then-current mailing address. TEX . R. APP .
P. 48.4.
Some courts of appeals have even implemented a helpful procedure in which they
reiterate the appellant’s right to file a pro se PDR and set out the time line for doing so in their
opinion. See, e.g., Glover v. State, No. 06-07-00060-CR, 2007 Tex. App. LEXIS 9162 (Tex.
App.– Texarkana, Nov. 20, 2007, pet. ref’d) (not designated for publication). In Glover, an
Anders case, the Texarkana Court of Appeals agreed with appellate counsel that there were no
In re Schulman Page 10
(3) the defendant has had time in which to file a pro se response;23 and
(4) the court of appeals has itself reviewed the record, the Anders brief, and any
pro se brief.24
After the completion of these four steps, the court of appeals will either agree that the appeal
is wholly frivolous, grant the attorney’s motion to withdraw, and dismiss the appeal, or it will
arguable points of error and noted:
Since we agree this case presents no reversible error, we also, in accordance with
Anders, grant counsel’s request to withdraw from further representation of Glover
in this case. No substitute counsel will be appointed. Should Glover wish to seek
further review of this case by the Texas Court of Criminal Appeals, Glover must
either retain an attorney to file a petition for discretionary review or Glover must
file a pro se petition for discretionary review. Any petition for discretionary
review must be filed within thirty days from the date of either this opinion or the
last timely motion for rehearing that was overruled by this Court. See TEX . R.
APP . P. 68.2. Any petition for discretionary review must be filed with this Court,
after which it will be forwarded to the Texas Court of Criminal Appeals along
with the rest of the filings in this case. See TEX . R. APP . P. 68.3. Any petition for
discretionary review should comply with the requirements of Rule 68.4 of the
Texas Rules of Appellate Procedure. See TEX . R. APP . P. 68.4.
Id. at *7-8 n.1. While this advisory by the court of appeals is not required, it is commendable.
23
See Johnson, 885 S.W.2d at 647 n.3 (adopting a thirty-day time period in which the
defendant may file a pro se responsive brief). This brief is not one subject to the requirements of
TEX . R. APP . P. 74 because its purpose is not to permit the court of appeals to decide the case on
the merits; it is intended only to alert the appellate court to any matters that the defendant
believes might be arguable in a brief on the merits. Wilson v. State, 955 S.W.2d 693, 696-97
(Tex. App.–Waco 1997, no pet.) (concluding that “the pro se response need not comply with the
rules of appellate procedure in order to be considered. Rather, the response should identify for
the court those issues which the indigent appellant believes the court should consider in deciding
whether the case presents any meritorious issues.”). Thus, the defendant’s pro se “brief” is not
an example of a forbidden hybrid representation because the pro se filing is not a merits brief, it
is merely an informal opportunity for the indigent defendant to present what he believes are
claims or issues or areas of procedural or substantive concern that arguably deserve a full merits
brief by a second attorney. See Bledsoe v. State, 178 S.W.3d 824, 827 (Tex. Crim. App. 2005).
24
Stafford, 813 S.W.2d at 510-11.
In re Schulman Page 11
determine that there may be plausible grounds for appeal.25 If the court of appeals decides
that there are any colorable claims for appeal, it will: (1) grant the original attorney’s motion
to withdraw; and (2) abate the case and send it back to the trial court to appoint a new
attorney with directions to file a merits brief.26
III.
This particular procedure, though not required by the federal constitution,27 seems to
work relatively well in Texas. We see no reason to change it at this time. And under this
procedure, the Seventh Court of Appeals appropriately ordered the Relator, Mr. Schulman,
to file a motion to withdraw as a condition precedent to filing his Anders brief.
The Relator, in his application for a writ of mandamus, argues that he should not be
required to file a motion to withdraw because he still had “legal and moral duties to his
client.” 28 He argues that the discussion in Anders concerning the requirement that an
25
Id.
26
See Tellez v. State, 880 S.W.2d 247, 248 (Tex. App.– El Paso 1994, no pet.) (per
curiam) (in its review, appellate court found arguable error regarding voluntariness of confession,
therefore it abated the appeal and remanded it to the trial court for appointment of new counsel);
see generally, DIX & DAWSON , supra note 12, at §§ 24.149-24.156.
27
See Smith v. Robbins, 528 U.S. 259, 280-84 (2000).
28
Application for Writ of Mandamus at 3 (citing to his Response to Clerk’s Instructions
Regarding Motion to Withdraw). Relator states that he must “continue to offer answers to
questions posed by Appellant that are reasonably related to this case and/or procedure to be
followed in seeking further review. ¶ Finally, from a moral standpoint, the undersigned suggests
that his duty to assist Appellant is not and cannot be extinguished by the filing of an Anders
brief.”
In re Schulman Page 12
appointed attorney who finds that any appeal would be frivolous must file a motion to
withdraw was “obiter dicta, having no import to the core holding of the case.” 29 We are
unable to find any authority from any jurisdiction for the proposition that the Supreme
Court’s discussion of the requirement that counsel file a motion to withdraw is mere obiter
dicta. Instead, in Smith v. Robbins, the Supreme Court drew back from the proposition that
the “Anders brief” procedure was a constitutional requirement. It concluded that “[t]he
procedure we sketched in Anders is a prophylactic one; the States are free to adopt different
procedures, so long as those procedures adequately safeguard a defendant’s right to appellate
counsel.” 30
The Relator correctly notes that there is a need for uniform procedures for those cases
in which an Anders brief is filed, especially as the Texas Rules of Appellate Procedure do
not provide any explicit guidance. The Anders procedure is simply one judicially created,
prophylactic means that the Supreme Court suggested to safeguard a defendant’s
constitutional right to appellate counsel.31 The Texas Legislature is free to adopt other means
should it so chose, and the courts of Texas could implement an alternate procedure should
it prove more beneficial and appropriate. But in the meantime, we will continue to adhere
to the original rationale and procedural guidelines set out in Anders.
29
Id. at 9.
30
Smith v. Robbins, 528 U.S. 259, 265 (2000).
31
Id.
In re Schulman Page 13
Relator and some courts of appeals may share in some confusion concerning the
distinction between the filing of a motion to withdraw and the granting of that motion.
Under the Anders procedure, the motion to withdraw will not be granted until the appellate
court decides whether the appeal is, in fact, wholly frivolous, or whether there are any
arguable claims of merit.32 In either event, the motion to withdraw will then be granted and
either the appeal will be dismissed or the case abated to the trial court for appointment of
32
See, e.g., Meza v. State, 206 S.W.3d 684, 689 (Tex. Crim. App. 2006) (holding that
“the courts of appeals have jurisdiction and authority to grant a motion to withdraw that
accompanies an Anders brief whenever, as here, they find that appellate counsel has exercised
professional diligence in assaying the record for error, and they agree that the appeal is frivolous.
In such circumstances the court of appeals should grant the motion to withdraw. If, on the other
hand, they believe either that appellate counsel has not adequately discharged his constitutional
duty to review the record for any arguable error, or that the appeal is not wholly frivolous,
notwithstanding appellate counsel’s efforts, they must then abate the appeal and return the cause
to the trial court for the appointment of new appellate counsel[.]”); Stafford v. State, 813 S.W.2d
503, 511 (Tex. Crim. App. 1991) (“After an attorney files a proper Anders brief (which should be
filed with a request for withdrawal from the case) and the appellant is afforded an opportunity to
respond, the Court of Appeals–not the attorney–must conduct its own investigation of the record
to discover if there are arguable grounds. If grounds are deemed arguable, the Court of Appeals
then must abate the appeal and remand the case to the trial court with orders to appoint other
counsel to present those and any other grounds that might support the appeal. As we read
Anders, counsel filing a frivolous brief must be allowed to withdraw from the case and
consequently cannot be ordered to argue grounds that she had previously determined to be
without merit.”) (footnote omitted); In re J.L.M, ___ S.W.3d __, No. 12-07-00013-CV, 2008
Tex. App. LEXIS 658 *3 (Tex. App.– Tyler, January 31, 2008, no pet. h.) (noting that appellate
counsel filed Anders brief and “moved for leave to withdraw. We carried the motion with our
consideration of the merits. Having done so and finding no reversible error, Appellant’s
counsel’s motion for leave to withdraw is hereby granted and the trial court’s judgment is
affirmed.”); Morales v. State, No. 11-06-00241-CR, 2007 Tex. App. LEXIS 5010 * 2 (Tex.
App.– Eastland, June 28, 2007, no pet. h.) (not designated for publication) (“Appellant’s court-
appointed counsel has filed a motion to withdraw. The motion is supported by a brief in which
counsel professionally and conscientiously examines the record and applicable law and states that
he has concluded that the appeal is frivolous. . . . Counsel has provided appellant with a copy of
the brief and advised appellant of his right to review the record and file a response to counsel’s
brief. A response has not been filed. Court-appointed counsel has complied with the
requirements of Anders”).
In re Schulman Page 14
new counsel. Counsel’s duties to his client are not extinguished until that time. Until his
Anders motion to withdraw is granted, counsel represents his client, must send his client a
copy of the Anders brief, must inform him of his right to file a pro se response, must respond
to his client’s questions, must send him a copy of the decision by the court of appeals,33 must
ensure that his client has been informed of his right to file a pro se PDR,34 and so forth.35 But
33
The duty to send the client a copy of the court of appeals’s decision is an informational
one, not a representational one. It is ministerial in nature, does not involve legal advice, and
exists after the court of appeals has granted counsel’s motion to withdraw. This informational
duty could have been placed upon the appellate courts themselves, but because counsel is usually
better informed about his former client’s whereabouts, it has been placed on his shoulders. If,
however, the client has not kept counsel informed of his current address, then counsel cannot be
held responsible for his client’s failure to timely receive a copy of the appellate opinion or notice
of his right to timely file a pro se PDR.
34
As explained in note 22, supra, the trial court’s certification of the right to appeal now
includes an advisory concerning the appellant’s right to file a pro se PDR. This is not an instance
in which the trial judge is giving legal advice to the defendant, he is merely informing that person
of his statutory right to appeal. The same is true when appellate counsel sends his now-former
client a copy of the court of appeals’s opinion and the required information concerning the
appellant’s statutory right to file a pro se PDR. Of course, as we stated in Ex parte Owens, 206
S.W.3d 670, 674 n.4 (Tex. Crim. App. 2006), “[t]here is no particular reason that counsel filing
an Anders brief cannot alert his client to the client’s right to file a petition for discretionary
review at the same time that he informs his client of his rights to file a pro se appellate brief[.]”
35
New TEX R. APP . P. 48.4, entitled Opinion Sent to Criminal Defendant, states,
In criminal cases, the attorney representing the defendant on appeal shall, within
five days after the opinion is handed down, send his client a copy of the opinion
and judgment, along with notification of the defendant’s right to file a pro se
petition for discretionary review under Rule 68. This notification shall be sent
certified mail, return receipt requested, to the defendant at his last known address.
The attorney shall also send the court of appeals a letter certifying his compliance
with this rule and attaching a copy of the return receipt within the time for filing a
motion for rehearing. The court of appeals shall file this letter in its record of the
appeal.
Id. This rule applies when appellate counsel files an Anders brief as well as when he files a
merits brief. Again, this duty is informational, not representational.
In re Schulman Page 15
the court of appeals cannot proceed in an orderly way in the Anders situation until and unless
counsel has filed a motion to withdraw.
Because the Seventh Court of Appeals was correct in its Order that Mr. Schulman
must file a motion to withdraw before that court can proceed further in this appeal, we deny
mandamus relief.
Delivered: April 30, 2008
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