Michael Ardis v. the State of Texas ( 2022 )

Abated and Opinion Filed October 25, 2022
In The
Court of Appeals
Fifth District of Texas at Dallas
No. 05-21-00875-CR
MICHAEL ARDIS, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 265th Judicial District Court
Dallas County, Texas
Trial Court Cause No. F-2110832-R
MEMORANDUM OPINION
Before Justices Myers, Pedersen, III, and Garcia
Opinion by Justice Pedersen, III
Appellant Michael Ardis was indicted and charged with aggravated assault
with a deadly weapon. Appellant entered an open plea of guilty. Following a two-
day evidentiary hearing on punishment, the trial court sentenced appellant to twenty
years’ confinement in the Institutional Division of the Texas Department of Criminal
Justice. This appeal followed.
Appellant’s attorney has filed a brief in which he concludes the appeal is
wholly frivolous and without merit. See Anders v. California, 386 U.S. 738 (1967).
The State filed a letter response, in which it agreed with appellant’s counsel that the
appeal is without merit.1 We advised appellant of his right to file a pro se response.
Appellant requested an extension of time to file his response, and we granted that
request, but appellant did not file a response. See Kelly v. State, 436 S.W.3d 313,
319–21 (Tex. Crim. App. 2014) (noting appellant has right to file pro se response
to Anders brief filed by counsel).
The Anders procedure imposes obligations on both appellate counsel and this
Court. When counsel concludes there are no arguable issues for his client’s appeal,
his obligation to his client is to seek leave to withdraw as counsel. In re Schulman,
252 S.W.3d 403, 407 (Tex. Crim. App. 2008). His obligation to this Court is to
assure us “through the mechanism of an Anders brief, that, after thorough
investigation and research, his request [to withdraw] is well founded.” Id.The Anders brief must:
discuss the evidence adduced at the trial, point out where pertinent
testimony may be found in the record, refer to pages in the record where
objections were made, the nature of the objection, the trial court’s
ruling, and discuss either why the trial court’s ruling was correct or why
the appellant was not harmed by the ruling of the court.
High v. State, 573 S.W.2d 807, 813 (Tex. Crim. App. 1978). Depending on
the case, this process may require significant time and effort from counsel, but
it must be followed.
1
The State identified and asked us to correct a clerical error in the trial court’s judgment concerning
the proper identification of the attorney for the State at trial. Because of our disposition of the case, we do
not address that clerical matter at this time.
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As to this Court’s obligation when presented with an Anders brief, we
may conclude that the appeal is wholly frivolous and issue an opinion
explaining that we have reviewed the record and find no arguable error, or we
may conclude that arguable grounds for appeal exist and remand the cause to
the trial court so that new counsel may be appointed to brief the issues.
Bledsoe v. State, 178 S.W.3d 824, 826–27 (Tex. Crim. App. 2005). To that
end, we have independently reviewed the record and counsel’s brief. That
review has raised concerns as to whether appointed counsel has met his
obligations under Anders and High.
At the beginning of the punishment hearing, trial counsel for appellant made
two objections related to untimely disclosure of information by the State. First, she
objected to expert testimony by Darrell Doty—who was identified by the prosecutor
only the day before—concerning appellant’s fingerprints and certain certified
judgments. The trial court overruled this objection, and while appellate counsel
repeats the prosecutor’s response from below, he does not clearly say whether that
argument and the trial court’s ruling was correct. Instead, he asserts that the prior
convictions not proved by comparable fingerprints were proved up by other
evidence.
Trial counsel also objected before the hearing to a series of untimely
disclosures of evidence:
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I’ve been receiving discovery and other evidence on this case from [the
prosecutor]. I received quite a bit yesterday. I want to say about six or
seven files. I received about eight or twelve files on the 10th. I received
a Brady notice on the 9th. And then at -- one, two, three, four pieces of
evidence on the 7th. And then about a half of a dozen pieces of evidence
on September 3rd. We would contest that those are outside the window
for this hearing. We would ask that those be excluded.
Appellate counsel relates the trial court’s ruling, allowing the State to proceed with
any evidence on the original charged offense and on any extraneous offenses other
than the most recent criminal mischief charge, which was the subject of most of the
late-produced videos. No late-produced evidence was excluded, although the
criminal mischief videos could not be shown until the second day of the punishment
hearing. Appellant counsel does not address whether this ruling was correct. Instead,
he cites cases stating generally that admission of extraneous evidence is subject to
an abuse of discretion review and then cites cases concerning harmless error. In
another part of the brief, he states: “Any issues related to newly turned over
discovery was resolved by allowing the Appellant additional time to review and
prepare for the introduction of same.”
We are not satisfied that appellate counsel addressed these pre-hearing
objections thoroughly as Anders envisioned. “The constitutional requirement of
substantial equality and fair process can only be attained where counsel acts in the
role of an active advocate on behalf of his client, as opposed to that of amicus
curiae.” High, 573 S.W.2d at 810 (citing Anders, 386 U.S. at 744).
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We are also concerned by appellate counsel’s treatment of objections raised
by trial counsel during the two-day punishment hearing. The brief includes only this
general summary:
Most objections made during the testimony concerned narrative
testimony or leading questions. Some other objections pertained to
testimony that Appellant objected to as hearsay. Some of Appellant’s
objections were sustained [cite to two pages of record]. While other
objections concerning hearsay were overruled the same evidence came
in either thru [sic] other witness testimony and/or exhibits that were
admissible and/or unobjected to [cite to three places in record].
Elsewhere in the brief, counsel cites to a case stating that error in the admission of
evidence is harmless if similar evidence was admitted without objection. This
cursory discussion does not comport with our review of the record, which indicates
that appellant’s trial counsel labored mightily, objecting repeatedly, in an effort to
have evidence presented in question-and-answer form without the prosecutor’s
testifying. Her many objections also challenged testimony that included hearsay and
lack of personal knowledge, and questions addressing undisclosed photographs and
text messages. Indeed, the trial court gave counsel a running objection to the
prosecutor’s questions involving prior conduct by appellant that was “outside of a
decade time frame. No police report, no conviction on it, and does not have bearing
on this hearing.” Although the scope of relevant evidence is very broad in the
punishment phase of trial, the rules of evidence still apply. See Beltran v. State, 728
S.W.2d 382, 387 (Tex. Crim. App. 1987) (“Thus the wide discretion given to the
trial court under Article 37.071(a), supra, extends only to the question of relevance
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of the facts sought to be proved. Article 37.071(a) does not alter
the rules of evidence insofar as the manner of proof is concerned.”).
We have noted in the past that “whether error is harmful or not harmful is a
separate question from frivolity—that is, whether the trial court violated a procedural
rule, which may or may not be harmful, is not a frivolous argument.” Bowenwright
v. State, No. 05-19-01309-CR, 2021 WL 3686607, at *2 (Tex. App.—Dallas Aug.
19, 2021, no pet.) (mem. op., not designated for publication). “[I]t is the appellate
court’s duty to assess harm after a proper review of the record.” Burnett v. State, 88
S.W.3d 633, 638 (Tex. Crim. App. 2002). While counsel’s opinion concerning harm
can be helpful, it is rarely determinative of whether an error is an arguable one; every
evidentiary issue lies within a unique record that requires its own application of the
harmless-error rule.2
We conclude that the Anders brief in this case—which appears to conclude
with minimal discussion that any errors were harmless to appellant—does not
sufficiently address trial counsel’s evidentiary objections during the punishment
hearing.
2
In this vein, we distinguish the unaddressed error pointed out in this case by the State, i.e., the trial
court’s failure to admonish appellant orally concerning the possible negative effects of a guilty plea under
immigration law. See TEX. CODE CRIM. PROC. ANN. art. 26.13(a)(4), (d), (d-1) (requiring this
admonishment to be delivered orally and in writing). We have recently addressed this issue and concluded
that when the record affirmatively shows that appellant is a United States citizen, any failure to admonish
him orally about the immigration consequences of his guilty plea is harmless error and, therefore, not an
arguable issue. Davilacontreras v. State, No. 05-21-00995-CR, 2022 WL 4396145, at *1 (Tex. App.—
Dallas Sept. 23, 2022, no pet. h.) (mem. op., not designated for publication) (citing VanNortrick v. State,
227 S.W.3d 706, 709 (Tex. Crim. App. 2007)).
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We identify these concerns as illustrations of matters that remain to be
investigated in this record. We express no opinion as to whether there is, or is not, a
meritorious issue in this case. However, 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. We grant appointed
counsel’s motion to withdraw and strike his Anders brief.
We remand the 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 that case.
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 abate the appeal for the trial court to comply with the dictates of this
opinion.
/Bill Pedersen, III//
210875f.u05 BILL PEDERSEN, III
JUSTICE
Do Not Publish
TEX. R. APP. P. 47
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