GRANT; ABATE and Opinion Filed September 2, 2020 

S 

In The 

Court of Appeals 

Fifth District of Texas at Dallas 

No. 05-19-00371-CR 

CLIFTON DEMONE OWENS, Appellant 

V. 

THE STATE OF TEXAS, Appellee 

On Appeal from the Criminal District Court No. 2 

Dallas County, Texas 

Trial Court Cause No. F-1854331-I 

MEMORANDUM OPINION 

Before Justices Schenck, Osborne, and Reichek 

Opinion by Justice Osborne 

 Appellant, Clifton Demone Owens, was convicted by a jury of aggravated 

robbery and subsequently sentenced by the trial court to twenty-five years’ 

imprisonment. 

After appellant filed a notice of appeal and a pauper’s oath, the trial court 

appointed appellate counsel. Appointed counsel filed a brief in which he concluded 

this appeal was wholly frivolous, without merit, and that there were no arguable 

grounds to advance. See Anders v. California, 386 U.S. 738 (1967); Gainous v. State, 
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436 S.W. 2d 137, 138 (Tex. Crim. App. 1969). Appointed counsel also filed a 

separate motion to withdraw stating that he sent appellant a copy of the motion and 

brief and had “complied with the requirements” of Kelly v. State, 436 S.W.3d 313 

(Tex. Crim. App. 2014).1

 

Appellant filed a pro se brief alleging error regarding what he termed (1) a 

lack of evidence, (2) possible tampering with evidence, and (3) deficiencies in the 

original police report. He also claimed that he received ineffective assistance of 

appellate counsel because appointed counsel filed an Anders brief instead of a brief 

on the merits. In addition, appellant filed a motion asking this Court to replace his 

appointed counsel with a new attorney. 

We found the original Anders brief did not meet all of the requirements of 

Anders. Owens v. State, No. 05-19-00371-CR, 2020 WL 4281788, at *1 (Tex. 

App.—Dallas July 27, 2020, order) (mem. op., not designated for publication) 

(citing High v. State, 573 S.W.2d 807, 811 (Tex. Crim. App. [Panel Op.] 1978)). We 

struck that brief and ordered appointed counsel to either (1) file a brief that addresses 

arguable issues found within the record, or (2) if, after a thorough and professional 

 

1

 The Kelly case clarifies that an appointed attorney who files an Anders brief must fulfill a number 

of additional functions: (1) notify his client of the motion to withdraw and the accompanying Anders brief, 

providing him a copy of each; (2) inform him of his right to file a pro se response and of his right to review 

the record preparatory to filing that response; (3) inform him of his pro se right to seek discretionary review 

should the court of appeals declare his appeal frivolous; and (4) take concrete measures to initiate and 

facilitate the process of actuating his client’s right to review the appellate record, if that is what his client 

wishes. Kelly v. State, 436 S.W.3d 313, 319 (Tex. Crim. App. 2014). 
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review of the record, counsel identifies no such arguable issues, file an Anders brief 

that complies with the requirements of High. Id., 2020 WL 4281788, at *3. We also 

ordered appointed counsel to address the issues raised in appellant’s pro se response 

and denied appellant’s pro se motion for new counsel. Id. 

In accordance with that opinion, appointed counsel has again filed a motion 

to withdraw and an amended Anders brief in which he again concludes that this 

appeal is frivolous and without merit. 

Underlying the Anders procedure is the constitutional requirement of 

substantial equality and fair process; this can only be attained if appointed counsel 

acts in the role of an active advocate on behalf of his client. Anders, 386 U.S. at 744; 

Arevalos v. State, No. 05-19-00466-CR, 2020 WL 5087778, at *2 (Tex. App.—

Dallas Aug. 28, 2020, no pet. h.) (mem. op., not designated for publication) (citing 

Jimenez v. State, No. 05-18-00848-CR, 2020 WL 3166740, at *1 (Tex. App.—

Dallas June 15, 2020, order) (mem. op., not designated for publication)). A properly 

prepared Anders brief will provide the appellate court with assurance of integrity in 

the criminal proceedings in the trial courts. Arevalos, 2020 WL 5087778, at *2; 

Jimenez, 2020 WL 3166740, at *1. To that end, an Anders brief must “discuss the 

evidence adduced at the trial, point out where pertinent testimony may be found in 

the record, refer to pages in the record where objections were made, the nature of 

the objection, the trial court’s ruling, and discuss either why the trial court’s ruling 
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was correct or why the appellant was not harmed by the ruling of the court.” High, 

573 S.W.2d at 813; see also Crowe v. State, 595 S.W.3d 317, 320 (Tex. App.—

Dallas 2020, no pet.); Arevalos, 2020 WL 5087778, at *2. 

The Anders brief serves the dual purposes of setting out an attorney’s due 

diligence investigation on behalf of the client and providing the appellate court with 

a “roadmap” for review of the record because “the court itself must be assured that 

the attorney has made a legally correct determination that the appeal is frivolous.” 

In re Schulman, 252 S.W.3d 403, 407 (Tex. Crim. App. 2008); Arevalos, 2020 WL 

5087778, at *2; Jimenez, 2020 WL 3166740, at *1. If done correctly, an Anders brief 

can be more difficult and time-consuming to prepare than an ordinary appellate brief. 

Arevalos v. State, No. 05-19-00466-CR, 2020 WL 4199062, at *3 (Tex. App.—

Dallas July 22, 2020, order) (not yet published) and cases cited therein. Appointed 

appellate counsel’s Anders obligations are constitutionally sensitive and require 

active advocacy. Anders, 386 U.S. at 744. 

When we receive an Anders brief from a court-appointed attorney2

 asserting 

that no arguable grounds for appeal exist, we must determine that issue 

independently by conducting our own review of the entire record. Anders, 386 U.S. 

 

2

 The procedural safeguards established in Anders do not apply to retained counsel. See McCoy v. Court 

of Appeals of Wis., 486 U.S. 429, 437 (1988); Jeffery v. State, 903 S.W.2d 776, 779 n.3 (Tex. App.—Dallas 

1995, no pet.); Crowe v. State, 595 S.W.3d 317, 319 n.1 (Tex. App.—Dallas 2020, no pet.). If a retained 

attorney concludes that an appeal lacks merit, that attorney is obligated to inform the client of this 

conclusion and refuse to prosecute the appeal. McCoy, 486 U.S. at 437; Lopez v. State, 283 S.W.3d 479, 

480 (Tex. App.—Texarkana 2009, no pet.). 
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at 744; Stafford v. State, 813 S.W.2d 503, 511 (Tex. Crim. App. 1991). If we 

conclude, after conducting an independent review, that “appellate counsel has 

exercised professional diligence in assaying the record for error” and agree that the 

appeal is frivolous, we should grant counsel’s motion to withdraw, Meza v. State, 

206 S.W.3d 684, 689 (Tex. Crim. App. 2006), and affirm the trial court’s judgment. 

In re Schulman, 252 S.W.3d at 409; Crowe, 595 S.W.3d at 320. However, if we 

conclude either that appellate counsel has not adequately discharged the 

constitutional duty to review the record for any arguable error, or that the appeal is 

not wholly frivolous, we abate the appeal and return the cause to the trial court for 

the appointment of new appellate counsel. Meza, 206 S.W.3d at 689; Crowe, 595 

S.W.3d at 320. This Court takes its obligations under Anders seriously and we 

strictly enforce the requirements of Anders. Arevalos, 2020 WL 5087778, at *2; see 

also Celaya v. State, No. 05-18-00391-CR, 2020 WL 4251249, at *2 (Tex. App.—

Dallas July 24, 2020, no pet. h.) (mem. op., not designated for publication) (stating 

that this Court “has grown weary of pro forma Anders briefs that do not reflect that 

appellate counsel has conducted a conscientious and thorough review of the law and 

the facts in full compliance with the requirements of Anders.”). 

In the amended Anders brief, appointed counsel again discusses (1) the 

indictment, (2) pretrial motions, (3) jury selection, (4) the sufficiency of the 

evidence, (5) the jury charge, and (6) the arguments of counsel. He discusses many 
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of the objections raised by defense counsel at both the guilt/innocence and 

punishment phases of the trial. Appointed counsel also discusses the three specific 

matters raised by appellant in his pro se response and explains why none of 

appellant’s issues are valid or will support a point of error. Additionally, he discusses 

sustained objections and explains why those objections preserve nothing for 

appellate review. 

However, after conducting a further independent review of the record in this 

case, we are once again forced to conclude that appointed counsel has not yet met 

his obligations under Anders. 

For example, we note first that, while appointed counsel discusses many of 

the objections made by defense counsel and the trial court’s rulings thereon, we can 

find no mention of at least four additional objections, one made at guilt/innocence 

and three made during the punishment phase of the trial. Nor does appointed counsel 

discuss any of the State’s objections, of which there were at least seven, and the trial 

court’s rulings thereon. An Anders brief filed in a contested case must describe any

objections raised and ruled on during trial and “discuss either why the trial court’s 

ruling was correct or why the appellant was not harmed by the ruling of the trial 

court.” High, 573 S.W.2d at 811 (emphasis added). Nothing in Anders or High limits 

that discussion to only defense objections. Nor should any language in our prior 

opinion be read as limiting appointed counsel’s duty to discuss only the defense 
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objections.3

 Indeed, the necessity of discussing the State’s objections and the rulings 

thereon becomes increasingly clear if those objections and rulings prevented the 

defense from admitting evidence or pursuing a line of questioning, crossexamination, or impeachment of any witness. Arevalos, 2020 WL 5087778, at *3. 

We list these examples only as illustrative of matters that remain to be 

investigated in this record. We note that this was a jury trial on guilt/innocence in 

which appellant’s guilt was contested. We further note that the record before us 

contains many objections and rulings which were adverse to appellant. And, while 

we express no opinion as to whether there is, or is not, a meritorious issue in this 

case, we are not completely satisfied that the amended Anders brief filed by 

appointed counsel is based upon the type of review envisioned by Anders, i.e., a 

conscientious and thorough review of the law and facts. Nor are we completely 

satisfied that appointed counsel has adequately researched this case and used due 

diligence investigating potential error before requesting to withdraw from further 

 

3

 It is apparent to us that appointed counsel mis-read our prior opinion as a directive to file an amended 

Anders brief to discuss only the defense objections. Yet our order to counsel was far more encompassing: 

We order appointed counsel, within thirty days of the date of this opinion and order, to 

either (1) file a brief that addresses arguable issues found within the record, or (2) if, a 

thorough and professional review of the record, counsel identifies no such arguable issues, 

file an Anders brief that complies with the requirements of High, 573 S.W.2d at 813. 

Owens v. State, No. 05-19-00371-CR, 2020 WL 4281788, at *3 (Tex. App.—Dallas July 27, 2020, order) 

(mem. op., not designated for publication). 
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representation. Kelly v. State, 436 S.W.3d 313, 318 (Tex. Crim. App. 2014); In re 

Schulman, 252 S.W.3d at 407-08. Consequently, we grant appointed counsel’s 

motion to withdraw and strike the amended Anders brief filed by appointed counsel. 

We remand this case to the trial court and order the trial court to appoint new 

appellate counsel to represent appellant.4

 New appellate counsel should investigate 

the record and either (1) file a brief that addresses arguable issues found within the 

record, or (2) if, after a thorough and professional review of the record, counsel 

identifies no such arguable issues, file an Anders brief that complies with the 

requirements of Anders and High. 

We further order the trial court to inform this Court in writing of the identity 

of new appellate counsel, new appellate counsel’s contact information, and the date 

counsel is appointed. 

We remove this appeal from the submission docket and abate the appeal for 

the trial court to comply with the dictates of this opinion. 

DO NOT PUBLISH 

TEX. R. APP. P. 47.2(b) 

190371F.U05 

 

4

 As noted above, we previously concluded that the brief filed by appointed counsel failed to meet all 

the requirements for a proper Anders brief. At that time, we afforded appointed counsel an opportunity to 

re-brief this case. Owens, 2020 WL 4281788, at *3. Counsel once again filed an Anders brief, albeit a brief 

providing a more complete review of the record than his first Anders brief, that still failed to fully comply 

with the requirements of Anders. Having given appointed counsel one opportunity to re-brief, we are not 

inclined to provide counsel with a second briefing opportunity.

/Leslie Osborne/ 

LESLIE OSBORNE 

JUSTICE