IN THE COURT OF CRIMINAL APPEALS

OF TEXAS

NO. AP-75,932

EX PARTE CHARLES MELVIN FROUD, Applicant

ON APPLICATION FOR A WRIT OF HABEAS CORPUS

FROM CAUSE NO. 97CR1742-83 IN THE 212 JUDICIAL DISTRICT COURT TH

OF GALVESTON COUNTY

Per curiam.

O P I N I O N 

Pursuant to the provisions of Article 11.07 of the Texas Code of Criminal Procedure, the

clerk of the trial court transmitted to this Court this application for a writ of habeas corpus. Ex parte

Young, 418 S.W.2d 824, 826 (Tex. Crim. App. 1967). Applicant was convicted of aggravated sexual

assault of a child and sentenced to twenty-five years’ imprisonment. Appellate counsel filed an

Anders brief and a motion to withdraw, which was granted by the court of appeals when that court

affirmed Applicant’s conviction. Froud v. State, No. 14-06-00882-CR (Tex. App.– Houston [14th

Dist.], March 22, 2007). 
Applicant contends that appellate counsel failed to comply with the requirements of Anders

v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), in that counsel failed to notify

Applicant of his withdrawal or provide Applicant a copy of his brief to allow Applicant to raise any

claims he believed to be meritorious. See Stafford v. State, 813 S.W.2d 503, 510 (Tex. Crim. App.

1991). 

The trial court obtained an affidavit from appellate counsel in response to Applicant’s claims,

and conducted a habeas hearing. In his affidavit, counsel states that he sent a copy of the Anders

brief and a letter referring Applicant to the appellate court to continue his appeal to Applicant. At

the habeas hearing, counsel testified that he has a receipt showing that these documents were

received by TDCJ. Applicant testified at the habeas hearing that he never received the documents

because he was moved around within TDCJ a number of times during the period in question. 

The trial court has entered findings of fact and conclusions of law, finding that Applicant

testified at the habeas hearing that through no fault of his attorney, he was not properly notified of

his right to file a pro se brief in response to appellate counsel’s Anders brief. The trial court

recommends that relief be granted. As the United States Supreme Court held in Anders:

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. . . .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 the indigent and time allowed him to raise

any points that he chooses[.]

Anders v. California, 386 U.S. 738, 744 (U.S. 1967).
Applicant never received a copy of counsel’s Anders brief, or an opportunity to respond

thereto by raising points in a pro se appellate brief. Habeas corpus relief is granted and Applicant is

granted the opportunity to examine appellate counsel’s Anders brief, and to file an out-of-time pro

se appellate brief in his appeal from cause number 97CR1742-83 from the 212 Judicial District th

Court of Galveston County. For purposes of the Texas Rules of Appellate Procedure, all time limits

shall be calculated as if the Anders brief had been filed on the day that the mandate of this Court

issues. We hold that Applicant, should he desire to prosecute an appeal, must take affirmative steps

to file his pro se brief within thirty days after the mandate of this Court has issued.

Applicant’s remaining claims are dismissed. See Ex parte Torres, 943 S.W.2d 469 (Tex.

Crim. App. 1997).

DO NOT PUBLISH

DELIVERED: June 11, 2008