holding that, while an attorney need not prepare a petition for discretionary review or advise on the merits of seeking such review, the appellate attorney “must not neglect to timely inform his client that he has the right to seek such review,” even in instances where the attorney filed an Anders brief, i.e., a brief explaining why there are no arguable claims, in the intermediate appellate court
How later courts described this case
- holding that, while an attorney need not prepare a petition for discretionary review or advise on the merits of seeking such review, the appellate attorney “must not neglect to timely inform his client that he has the right to seek such review,” even in instances where the attorney filed an Anders brief, i.e., a brief explaining why there are no arguable claims, in the intermediate appellate court
- explaining that, to establish prejudice stemming from a claim that counsel’s error deprived the defendant of an entire proceeding, all the defendant must show is that he would “indeed have pursued that [proceeding]. He need not also show ‘some likelihood of success on appeal’”
- explaining that, to establish prejudice stemming from a claim that appellate counsel’s error deprived the defendant of an entire proceeding, all the defendant must show is that he “would indeed have pursued that [proceeding]”
- 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
Written by the judges who cited it.
The opinion
HERVEY, J.,
concurring in which JOHNSON and KEASLER, JJ„ joined.
In Ex parte Wilson, this Court decided that an indigent defendant has a constitutional right to the effective assistance of counsel until “appeals are exhausted,” 1 which includes counsel’s obligation to inform the defendant “of the result of the direct appeal and the availability of discretionary review.” See Ex parte Wilson, 956 S.W.2d 25, 27 (Tex.Cr.App.1997). The filing of an Anders 2 brief does not relieve appellate counsel of this obligation. 3
*679 The dissenting opinion asserts that applicant is not entitled to relief on his Wilson claim because the supplement (to his original writ application), which supplies through writ counsel a necessary pleading required by Ex parte Crow, 4 , is not sworn. Based on Ex parte Golden, 5 this Court has discretion to address the merits of an un-sworn petition. See Golden, 991 S.W.2d at 862 (choosing to address merits of un-sworn petition under the “peculiar circumstances” of the case).
Addressing the merits of applicant’s Wilson claim is “an appropriate exercise of the habeas corpus power” 6 primarily because the State does not rely on applicant’s supplement being unsworn as a basis to deny relief on his Wilson claim. See Golden, 991 S.W.2d at 862 (choosing to address merits of unsworn petition in part because “State has not moved to dismiss applicant’s application on the ground that it is un-sworn”) and at 863 (Womack, J., concurring) (same). It is also arguable that applicant’s supplement should be regarded as sworn since it is merely a supplement to the original writ, which is sworn. See Webster’s II Neiv Collegiate Dictionary (1999) at 1107 (defining “supplement” in part to mean “[something added to complete a thing, offset a deficiency, or strengthen the whole”). It is also relevant that the oath requirement of Article 11.14(5), Tex.Code Ceim. PROC., apparently refers only to an original writ and not to a supplement to an original writ. These are sufficient “peculiar circumstances” permitting the Court to exercise its discretion to address the merits of applicant’s Wilson claim.
With these comments, I join the Court’s opinion.
. See also Article 1.051(d)(1), Tex.Code Crim. Proc., (indigent defendant entitled to counsel in "an appeal to a court of appeals”).
. See generally Anders v. California, 386 U.S. 738 , 87 S.Ct. 1396 , 18 L.Ed.2d 493 (1967).
. In Anders, 386 U.S. at 744 , 87 S.Ct. 1396 , the Court described the obligations of appellate counsel who has determined that an appeal would be "wholly frivolous.”
The constitutional requirement of substantial equality and fair process can only be attained where counsel acts in the role of an active advocate in behalf of his client, as opposed to that of amicus curiae. The no-merit letter and the [state] procedure it triggers do not reach that dignity. Counsel should, and can with honor and without conflict, be of more assistance to his client and to the court. (Footnote omitted). His role as advocate requires that he support his client’s appeal to the best of his ability. Of course, if counsel finds his case to be wholly frivolous, after a conscientious examination of it, he should so advise the court and request permission to withdraw. That request 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 to the indigent and time allowed him to raise any points that he chooses; the court — not counsel — then proceeds, after a *679 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. On the other hand, if it finds any of the legal points arguable on their merits (and therefore not frivolous) it must, prior to decision, afford the indigent the assistance of counsel to argue the appeal.
. 180 S.W.3d 135, 138 (Tex.Cr.App.2005).
. 991 S.W.2d 859, 861-62 (Tex.Cr.App.1999).
. See Golden, 991 S.W.2d at 863 (Womack, J., concurring).