Ray Don Wilson v. the State of Texas ( 2021 )

Abated and Opinion Filed August 18, 2021
In The
Court of Appeals
Fifth District of Texas at Dallas
No. 05-19-01131-CR
RAY DON WILSON, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 291ST Judicial District Court
Dallas County, Texas
Trial Court Cause No. F18-75289-U
MEMORANDUM OPINION
Before Justices Molberg, Reichek, and Nowell
Opinion by Justice Nowell
Appellant Ray Don Wilson was convicted by a jury of murder and sentenced
to seventy years’ imprisonment. On appeal, appellant’s counsel filed an Anders brief
in which she concluded there were “no non-frivolous grounds for appeal.”
Thereafter, appellant filed a pro se response arguing ineffective assistance of counsel
by both his trial and appellate counsel and prosecutorial misconduct by the State.
When an appellate court receives an Anders brief from an appellant’s court-
appointed attorney asserting that no arguable grounds for appeal exist, we must
determine that issue independently by conducting our own review of the entire
record. Anders v. California, 386 U.S. 738, 744 (1967) (emphasizing the reviewing
court, and not appointed counsel, determines whether the case is “wholly frivolous”
after fully examining the proceedings); Stafford v. State, 813 S.W.2d 503, 511 (Tex.
Crim. App. 1991) (quoting Anders). An appeal is “wholly frivolous” or “without
merit” when it “lacks any basis in law or fact.” McCoy v. Court of Appeals, 486 U.S.
429, 438 n.10 (1988). Arguments are frivolous when they “cannot conceivably
persuade the court.” Id. at 436. An appeal is not wholly frivolous when it is based
on “arguable” grounds. See Anders, 386 U.S. at 744.
If, after conducting an independent review of the record, we conclude that
“appellate counsel has exercised professional diligence in assaying the record for
error” and agree the appeal is frivolous, we should grant counsel’s motion to
withdraw, Meza v. State, 206 S.W.3d 684, 689 (Tex. Crim. App. 2006), and affirm
the trial court’s judgment. In re Schulman, 252 S.W.3d 403, 409 (Tex. Crim. App.
2008). However, if we conclude “either that appellate counsel has not adequately
discharged [her] constitutional duty to review the record for any arguable error, or
that the appeal is not wholly frivolous, notwithstanding appellate counsel’s efforts,”
we must abate the appeal and return the cause to the trial court for the appointment
of new appellate counsel. Meza, 206 S.W.3d at 689; see also Crowe v. State, 595
S.W.3d 317, 318–19 (Tex. App.—Dallas 2020, no pet.) (recognizing and applying
these rules).
This Court takes its obligations under Anders seriously and we strictly enforce
the requirements of Anders. Arevalos v. State, No. 05-19-00466-CR, 2020 WL
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5087778, at *2 (Tex. App.—Dallas Aug. 28, 2020, no pet.) (mem. op., not
designated for publication); see also Celaya v. State, No. 05-18-00391-CR, 2020
WL 4251249, at *2 (Tex. App.—Dallas July 24, 2020, no pet.) (mem. op., not
designated for publication) (stating this Court “has grown weary of pro forma Anders
briefs that do not reflect that appellate counsel has conducted a conscientious and
thorough review of the law and the facts in full compliance with the requirements of
Anders.”).
After conducting an independent review of the record in this case, we
conclude that appointed counsel has not met her obligations under Anders. For
example, while appointed counsel discusses many of the objections made by defense
counsel, she does not discuss any of the State’s objections and the trial court’s rulings
thereon. An Anders brief filed in a contested case must describe any objections
raised and ruled on during trial and “discuss either why the trial court’s ruling was
correct or why the appellant was not harmed by the ruling of the trial court.” High
v. State, 573 S.W.2d 807, 811 (Tex. Crim. App. [Panel Op.] 1978). Nothing in
Anders or High limits that discussion to only defense objections. Arevalos, 2020 WL
5087778, at *3. Indeed, the necessity of discussing the State’s objections and the
rulings thereon becomes increasingly clear if those objections and rulings prevented
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the defense from admitting evidence or pursuing a line of questioning, cross-
examination, or impeachment of any witness.1 Id.This example is a mere illustration of matters that remain to be investigated
in this record. We note that this case was a jury trial to determine whether appellant
is guilty of murder, and the record contains many objections and rulings that were
adverse to appellant. While we express no opinion about whether there are
meritorious issues in this case, we are not satisfied that the brief filed by appointed
counsel is based upon the type of review envisioned by Anders, i.e., a conscientious
and thorough review of the law and facts. Kelly v. State, 436 S.W.3d 313, 318 (Tex.
Crim. App. 2014); In re Schulman, 252 S.W.3d at 407-08. Consequently, we grant
appointed counsel’s motion to withdraw and strike the amended Anders brief filed
by appointed counsel.
We remand this case to the trial court and order the trial court to appoint new
appellate counsel to represent appellant. New appellate counsel should investigate
the record and either (1) file a brief that addresses arguable issues found within the
record, or (2) if, after a thorough and professional review of the record, counsel
identifies no such arguable issues, file an Anders brief that complies with the
requirements of Anders and High.
1
The trial court sustained numerous objections lodged by the State during appellant’s cross-
examination of Officer Jeffrey Abeare, surrounding cell phone messages from the victim to appellate,
potentially preventing appellant’s trial counsel from presenting self-defense evidence.
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We further order the trial court to inform this Court in writing of the identity
of new appellate counsel, new appellate counsel’s contact information, and the date
counsel is appointed.
We remove this appeal from the submission docket and abate the appeal for
the trial court to comply with the dictates of this opinion.
/Erin A. Nowell//
ERIN A. NOWELL
191131f.u05 JUSTICE
Do Not Publish
TEX. R. APP. P. 47.2(b)
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