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. 08-20-00110-CR

Appeal from the

132nd District Court

of 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 indicated 
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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 of 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 criminal case at an appellant’s request, a motion to dismiss 

must be signed by both the appellant and his or her attorney. See TEX.R.APP.P. 42.2(a). Under 

ordinary circumstances, we would, on motion of an appellant, dismiss an appeal in which the 

formal requirements of Rule 42.2(a) have been met. 

Here, 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 must file frivolousness brief if counsel 

determines case is frivolous but client wishes to proceed nonetheless); In re Schulman, 252 S.W.3d 
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403, 409 (Tex.Crim.App. 2008)(detailing Anders process used in Texas). A criminal defense 

attorney’s duty is to zealously 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 withdraw 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 obligation 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 allegations 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 wishes 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 further inquiry is needed here given that Appellant’s counsel affirmatively

communicated he based his advice to his client on his belief 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 an 
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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. The trial 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 these determinations, 

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 findings and forward them to this Court, along with any 

reporter’s record of the hearing, within ten (10) 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 determines 

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 court shall enter those findings 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 

pending motion to dismiss. 

IS IT SO ORDERED THIS 1ST DAY OF FEBRUARY, 2021.

PER CURIAM

Before Rodriguez, C.J., Palafox, and Alley, JJ.