                                   IN THE
                           TENTH COURT OF APPEALS

                                  No. 10-14-00320-CR

CAROL JEAN STANLEY,
                                                              Appellant
v.

THE STATE OF TEXAS,
                                                              Appellee



                            From the 19th District Court
                             McLennan County, Texas
                            Trial Court No. 2012-1589-C1


                                DISSENT TO ORDER


       In Anders cases where appointed counsel has not already provided the appellant

with the record, this Court has historically notified the appellant by letter as follows:

       Your attorney has filed a brief finding that your appeal is frivolous. You
       have a right to review the record from your trial and file a written response
       with this Court raising any issues which you think the Court should
       consider in deciding your appeal. If you wish to obtain a copy of the record,
       you must contact the trial court clerk, whose address is: … .

       Our letter, a copy of which is also sent to the trial-court clerk, then provides the

appellant with the trial-court clerk’s address and cites to Gonzales v. State, 984 S.W.2d 790,
791 (Tex. App.—Waco 1999, order). In Gonzales, we ordered the trial-court clerk to

provide the appellant with the copy of the record on file with the trial-court clerk. See id.;

see also Kelly v. State, 436 S.W.3d 313, 321 (Tex. Crim. App. 2014) (“[B]y rule the trial court

clerk retains a duplicate that is specifically designated for use by the parties. Zeroing in

on this fact, many of the courts of appeals instruct the trial court to have its clerk make

the duplicate appellate record available to the appellant, which generally requires the

trial court clerk to forward a physical copy to the appellant if he is incarcerated.”).

        Since our order in Gonzales, I am aware of only one Anders case in which the

appellant was unable to obtain the record from the trial-court clerk without our

intervention. Plainly, our letter and its citation to Gonzales notify the trial-court clerk that

he or she must provide the record to the appellant if the appellant requests it. And I

cannot recall a case in this Court similar to Kelly, where the Court of Criminal Appeals

held that the court of appeals erroneously decided an Anders case without satisfying the

appellant’s request for access to the appellate record. Kelly, 436 S.W.3d at 322.

        Therefore, I am puzzled by the majority’s order, which announces new and overly

burdensome procedures in Anders cases.1 I believe that the new procedures set forth in

this order contradict Kelly and are confusing and unnecessary.2 Furthermore, I think that

by threatening an indigent and usually incarcerated appellant with dismissal if the


1 In cases like this where we have a motion for pro se access to the appellate record and are required by
Kelly to enter a formal written order, see Kelly, 436 S.W.3d at 321, I would adopt the language from our
template letter and add only that the trial-court clerk must notify us in writing of the date that the clerk
sent the record to the appellant. See id.

2
  “This [order] reminds me of the adage, if it ain’t broke, then regulate it until it is.” Kelly, 436 S.W.3d at
323 (Alcala, J., concurring).

Stanley v. State                                                                                       Page 2
indigent appellant cannot afford to mail the usually voluminous record to us, the

majority’s order likely violates due process and could chill the right of indigent

appellants to review the record in Anders cases. Accordingly, I respectfully dissent.

        The majority’s order is confusing because it orders Stanley’s appointed counsel to

obtain a copy of the appellate record and send it to Stanley, but it does not describe what

“copy” means. If the majority’s order means that Stanley’s appointed counsel is to obtain

the copy of the appellate record on file with trial-court clerk and send that copy to Stanley,

the order should say so.3

        And if the majority’s order means that Stanley’s appointed counsel is to obtain and

make a photocopy of the appellate record to send to Stanley, it should say so. If that is

the case, the order creates the further problem of who (Appointed counsel? The county?)

should bear the cost of photocopying appellate records that are often many hundreds, if

not thousands, of pages. Furthermore, in Kelly, the Court of Criminal Appeals specifically

stated that it would not require appellate counsel to copy and send the record to the

appellant:

        [I]t is sometimes the case that, when the appellate record is not voluminous,
        appellate counsel will sua sponte send a copy of the appellate record to the
        appellant along with the Anders brief and motion to withdraw. That would
        certainly expedite the process, and the court of appeals could then simply
        issue an order requiring the appellant to file his response to the Anders brief
        by a date certain. But we do not require appellate counsel to do so.

Kelly, 436 S.W.3d at 320 n.22 (emphasis added). While the Court of Criminal Appeals in




3As noted above, our template letter to appellants in Anders cases has been successfully accomplishing this
task without counsel’s involvement for quite some time.

Stanley v. State                                                                                    Page 3
Kelly left us some leeway on how to insure that an appellant obtains the record,4 we

should not adopt a procedure that Kelly specifically declined to require.

         Next, I disagree with the order’s requirement that Stanley must send the copy of

the appellate record to this Court. If the court’s order intends for Stanley to be provided

with the copy of the appellate record on file with the trial-court clerk and for Stanley to

send us that copy, I see several problems.

         First, if we are going to require the appellant to return the trial-court clerk’s copy

of the appellate record, we should require that it be returned to the trial-court clerk, not

to us.    Our clerk’s office should not be burdened with handling what are usually

voluminous appellate records. Based on the terms of the court’s order (“Appellant’s

failure to comply with his Order … may result in the dismissal of this appeal”),

presumably our clerk’s office will have to inspect the appellate record upon receipt to

confirm that all of it has been sent to us and that it was not taken apart or marked on.

Also, our clerk’s office should not have to bear the cost of then sending the appellate

record to the trial-court clerk. Lastly, now that we are in the age of electronic appellate

records, I question whether the trial-court clerk needs the copy of the appellate-record

returned at all. It is likely that the trial-court clerk will just print a copy of the appellate

record for the appellant from the electronic version and will not need back the paper copy

from the appellant.




4“By all accounts, each of these procedures has worked tolerably well in the past, and we need not mandate
or even recommend one over the others.” Kelly, 436 S.W.3d at 321.

Stanley v. State                                                                                   Page 4
         And if the court’s order intends for appointed counsel to provide a photocopy of

the appellate record to Stanley, I do not see a need for requiring Stanley to send us that

photocopy of the record. It will burden our clerk’s office with handling, storing, and

disposing of large volumes of documents that we have no need to possess in the first

place.

         Finally, for several reasons I am troubled by the order’s threat of dismissal of the

appeal under our inherent authority if Stanley fails to timely send the copy of the

appellate record to this Court. First, the order relies on our “inherent authority”5 and on

the presumption that the appellate record was obtained under false pretense (delaying

the appeal) to support dismissal if the record is not timely sent to us by Stanley, whether

or not she files a response. But in an Anders case, the appellant, who has already been

appointed counsel, is necessarily indigent. Therefore, it seems just as, if not more, likely

that if the record is not timely sent to us by the appellant, the reason is that the indigent

and usually incarcerated appellant could not pay the cost of mailing the appellate record

to us from prison or jail.6

         Dismissal of an appeal—even an appeal in which an Anders brief has been filed—

because an indigent appellant cannot pay the cost of mailing the appellate record to us




5Our inherent authority allows us to take certain actions to aid us in the exercise of our jurisdiction, in the
administration of justice, or in preserving our independence and integrity. State v. Johnson, 821 S.W.2d 609,
612 (Tex. Crim. App. 1991) (citing Eichelberger v. Eichelberger, 582 S.W.2d 395, 399 (Tex. 1979)).

6 Some   appellate records in criminal cases are small; most are not, and some require more than one standard
file box; one box alone could cost an indigent appellant approximately $20 to mail. Regardless, the cost of
mailing an appellate record from jail or prison is not insubstantial for an indigent appellant who may have
little or no money in his or her inmate account.

Stanley v. State                                                                                       Page 5
cannot withstand constitutional scrutiny. It is indisputable that an indigent defendant

has a constitutional right to a free appellate record and that convicted persons have a

constitutional right of access to the courts. See Griffin v. Illinois, 351 U.S. 12, 18-19, 76 S.Ct.

585, 590-91, 100 L.Ed. 891 (1956) (holding that state provision denying a complete and

free record, and thus full appellate review, to indigent persons violates due process and

equal protection); In re Bonilla, 424 S.W.3d 528, 531-33 (Tex. Crim. App. 2014) (orig.

proceeding) (discussing right of access to courts). While the right of an appellant in an

Anders case to have access to the record has not been held to be constitutionally required,

it nonetheless is a recognized right. See Kelly, 436 S.W.3d at 316 n.7. Also, the mere threat

of dismissal and the indigent appellant’s prospect of having to pay the cost of mailing the

record could chill the exercise of the appellant’s right in an Anders case to review the

record.

        Furthermore, while I concede the possibility that an appellant might request the

appellate record in an Anders case to delay the appeal, in addition to indigence, there are

other realistic and excusable reasons that could explain why an indigent and incarcerated

appellant might not timely send us the record.7                   I thus disagree with the blanket

presumption of an intent to delay the appeal if Stanley fails to timely send us the record.




7
  Because of this Court’s extensive experience with inmate civil litigation, I am aware of at least the
following possible reasons (in addition to indigence) why an incarcerated appellant might be unable to
timely send us the record: the appellant has been transferred to another unit and her property, which is
moved separately, has not caught up with her; the appellant’s legal materials, including the record, have
been confiscated (rightly or wrongly) by prison authorities; the appellant’s unit is on lockdown; the
appellant has been disciplined and cannot use the commissary to buy postage to mail the record; and the
record has been lost or destroyed through no fault of the appellant (e.g., a cellmate destroyed it, or prison
authorities confiscated it and either intentionally or accidentally destroyed it).

Stanley v. State                                                                                      Page 6
To comport with due process, the Court should provide the appellant the opportunity to

rebut the presumption before dismissal. If the appellant fails to timely send us the

appellate record, the Court should first notify the appellant that the time period for

sending us the appellate record has passed and that the Court will dismiss the appeal

unless, within an adequate time period, the appellant either sends us the record or

provides a sufficient reason why the record has not been timely sent.

        Finally, once an Anders brief has been filed and the appellant has been given

adequate time to file a pro se response, the appeal is at issue and the Court can proceed

to decide the case on the merits. The appellant is not required to file a pro se response,

and the appeal can be decided without the record being sent to us from the appellant. In

my view, dismissing the appeal at that juncture because the indigent appellant has not

timely sent the copy of the record to us is unwarranted.

        In conclusion, I would grant Stanley’s motion and, as we have done for years,

order the trial-court clerk to send the appellate record to Stanley. I would further require

the trial-court clerk to notify us in writing of that act. Because the majority does

otherwise, I respectfully dissent.



                                                 REX D. DAVIS
                                                 Justice

Delivered and filed May 7, 2015
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Stanley v. State                                                                      Page 7
