COURT OF APPEALS EIGHTH DISTRICT OF TEXAS EL PASO, TEXAS

KEVIN MARK BASFORD
, Appellant
,

v.

THE STATE OF TEXAS
, Appellee

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§ No. 08

- 20

- 0 0 110

- C R
Appeal from the

132nd District Court

o f Scurry County, Texas
(TC# 10678 )

O R D E R
Appellant, through his counsel Trey Keith, has filed a purported motion to dismiss the
appeal in this criminal action. We will abate this appeal pending further proceedings in the trial

court.
Keith represented Appellant as appointed counsel in the trial court, filed a notice of appeal
on Appellant’s behalf, and continues to represent Appellant on appeal. Appellant has submitted a
motion to dismiss this appeal signed by Keith
, which has attached to it a document signed by
Appellant entitled “Appellant’s Instruction to Attorney.” The document is partially redacted,
which counsel asserts was necessary to preserve privileged attorney

- client information.

The document states in relevant part
My name is Kevin Mark Basford. My appellate attorney, Trey Keith, believes that the Trial Record does not contain any reversible errors; he indicated2 to me that he will probably be required to file a ‘ Frivolous Appeal Brief ’ , by which he will tell the Court of Appeals there was no apparent error in my trial. For this reason, my attorney has asked me whether I wish to continue with an appeal. Therefore, I hereby instruct my attorney to proceed as follows:

PROCEED WITH APPEAL
[Paragraph redacted by blackout]
Nevertheless, I wish to proceed with an appeal, and I instruct my attorney accordingly.

____________ KEVIN MARK BASFORD [unsigned]
(OR)

WAIVER OF APPEAL
I do not believe that an appeal will change the outcome o f my criminal case. [Sentence redacted by blackout.] For these reasons, I instruct my appellate attorney that I wish to waive my right to appeal.

[SIGNATURE OF KEVIN MARK BASFORD]

_______________ KEVIN MARK BASFORD
In order to dismiss an appeal in a cri minal case at an appellant’s request, a motion to dismiss
must be signed by both the appellant and his or her attorney. See T EX .R.A PP .P. 42.2(a). Under
ordinary circumstances, we would , on motion of an appellant, dismiss an appeal in which the
formal requi rements of Rule 42.2(a) have been met.

H ere , however
, both the Motion to Dismiss and Appellant’s Instruction to Attorney
demonstrate that Appellant based his decision to dismiss his appeal on counsel’s assertion to him

that there were no reversible errors at trial and filing an appeal would not change the outcome of

his case . In such instances, there is a constitutionally required procedure to be followed

. See Anders
v. State of California , 386 U.S. 738, 742 (1967)(counsel mu st file frivolousness brief if counsel
determines case is frivolous but client wishes to proceed nonetheless); In re Schulman , 252 S.W.3d3 403, 409 (Tex.Crim.App. 2008)(detailing Anders process used in Texas). A criminal defense
attorney’s duty is to zealou sly advocate on behalf of his client’s interest. Anders , 386 U.S. at 744.
If an appointed attorney finds the appeal “to be wholly frivolous, after a conscientious examination
of it, he should so advise the court and request permission to withdraw.” Id

. In Texas, such a
motion for permission to withdra w should be accompanied by an Anders brief, which includes a
discussion of the appropriate facts of the case and its procedural history, as well as pointing out

any potentially plausible points of error. In re Schulman
, 252 S.W.3d at 406 (citing Anders , 386

U.S. at 744).
This procedure serves the attorney ’ s professional responsibilities as an officer of the court
to refrain from filing frivolous pleadings and his obl igation to assure the appellate court that he
has conducted a thorough investigation into possible errors. In re Schulman , 252 S.W.3d at 406

-

407. Further, it protects the attorney from future allegation s of ineffectiveness or lack of due
diligence. Id . at 408. The Anders brief serves two other important purposes given that a copy must

also be provided to the defendant

. See Anders , 386 U.S. at 744. It provides the specific citations to

the record in the event a defendant wish es to exercise his or her right to file a pro se brief

. Id

. Finally
, it provides the appellate court with a framework so that it may conduct its own independent

review of the record to ensure that the attorney has indeed made a legally correct determination

that the appeal is frivolous. In re Schulman , 252 S.W.3d at 407.
Although the motion contains an apparent waiver of appeal bearing Appellant’s signature,

we believe f urther inquiry is needed here given th at Appellant’s counsel affirmative ly

communicated he based his advice to his client on his belie f that an appeal would be frivolous

. Such inquiry should include a determination of whether there is a conflict between counsel and
client as to the disposition of this appeal and whether Appellant understood his right to receive an4 Anders brief and to thereafter raise points on appeal of his choosing , if desired

.
We determine that we cannot act on this motion to dismiss absent further information. As
such, we will abate this appeal and remand the matter to the trial court for the following actions:

1. Within forty

- five ( 45 ) days of the date of this order, the trial court will hold a hearing to determine whether the apparent waiver of appeal executed by Appellant and attached to the motion to dismiss filed in this Court was done so knowingly, intelligently, and voluntarily. T he tr ia l court will also make a separate determination as to whether the Appellant, at this time, wishes to exercise his rights under Anders and Schulman. In making th ese determination s , the trial court will appoint another attorney to advise Appellant. If the trial court determines Appellant’s waiver of appeal was made knowingly, intelligently, and voluntarily, and Appellant does not wish to pursue an appeal, then the trial court shall enter those finding s and forward them to this Court, along with any reporter’s record of the hearing, within ten ( 1 0 ) days of the hearing

.

2. If, however, the trial court determines Appellant’s waiver of appeal was not made knowingly, intelligently, and voluntarily, or if the trial court determ ines Appellant now wishes to exercise his rights under Anders and Schulman , then the trial court shall further consider whether there is good cause to substitute appellate counsel based on attorney Trey Keith’s representations to this Court. The trial cou rt shall enter those finding s and forward them to this Court, along with any reporter’s record of the hearing, within ten ( 10 ) days of the hearing. The attorney will then proceed in this Court at the direction of Appellant in accordance with appellate counsel’s professional duties and ethics under the law

.

Upon receipt of the findings from the trial court, this Court will take further action as

necessary , including but not limited to lifting this abatement and issuing a merits ruling on the

p ending motion to dismiss.

IS IT SO ORDERED THIS 1ST DAY OF FEB R UARY, 2021

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PER CURIAM

Before R odriguez , C.J., Palafox
, and Alley, JJ.