Juan Montellano v. the State of Texas

COURT OF APPEALS
EIGHTH DISTRICT OF TEXAS
EL PASO, TEXAS
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No. 08-24-00412-CR
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Juan Montellano, Appellant
v.
The State of Texas, Appellee

On Appeal from the 168th District Court
El Paso County, Texas
Trial Court No. 20240D05767

M E MO RA N D UM O PI NI O N
Following a jury trial, Appellant Juan Montellano appeals his judgments of conviction for

two counts of continuous sexual abuse of a child under 14 years of age and four counts of

indecency with a child by sexual contact, which were entered in cause number 20240D05767.

Montellano’s appointed counsel has filed an Anders brief, asserting that he conducted a review of

the record and determined that there are no legal or factual issues that arguably could be raised for

appellate review in this case, and that the appeal is “frivolous and without merit.”
Contemporaneously, counsel filed a motion to withdraw.1 We conclude that the brief does not

comply with the requirements of Anders v. California, 386 U.S. 738 (1967), and we strike the

brief, deny the motion to withdraw, and direct appellate counsel to file an amended brief subject

to the concerns addressed below.2

In Anders, after recognizing the right of an indigent defendant to receive constitutionally

effective assistance of counsel on his first appeal, the United States Supreme Court outlined a

procedure for ensuring that the defendant’s right is honored when his appointed attorney concludes

that the appeal is without merit. See id. at 742–45. If the appointed attorney finds, after a

conscientious examination of the record, that the case is “wholly frivolous,” he should so advise

the appellate court, request permission to withdraw, and file a brief referring to anything in the

record that might arguably support the appeal. Id. at 744. Texas courts adhere to the requirement

that a so-called Anders brief must refer to anything in the record that might arguably support the

appeal and must include adequate citations to the record and legal authority. See High v. State, 573

S.W.2d 807, 811–12 (Tex. Crim. App. [Panel Op.] 1978); see also Stafford v. State, 813 S.W.2d

503, 510 n.3 (Tex. Crim. App. 1991) (en banc) (recognizing that under Anders, appellate counsel

must provide the reviewing court with a “professional evaluation of the record demonstrating why

1
In his motion, counsel averred that he notified Montellano of his motion and brief, and provided him a copy of both;
informed Montellano of his right to file a pro se “response” identifying what he believes to be meritorious grounds to
be raised in his appeal; advised him of his right to review the appellate record in advance of filing that response;
explained the process for obtaining the appellate record and provided a Motion for Pro Se Access to the Appellate
Record lacking only appellant’s signature and the date, and provided the mailing address for this Court; and informed
Montellano of his right to seek discretionary review pro se should this Court declare his appeal frivolous. Montellano
has not filed a response or a pro se brief in this Court.
2
We encourage all appellate counsel to review on a regular basis the “Standards of Appellate Conduct” promulgated
by the Supreme Court of Texas and Court of Criminal Appeals. See
https://www.txcourts.gov/media/1437423/standards-for-appellate-conduct.pdf

We also note that while it is not always possible, best practice suggests appointing new and completely independent
counsel for the appeal of criminal cases. See, e.g., Maldonado v. State, No. 07-17-00190-CR, 2017 WL 4784938, at *1
n.4 (Tex. App.—Amarillo Oct. 18, 2017, no pet.); Alvarez-Tarango v. State, No. 08-20-00103-CR, 2021 WL 3141297,
at *1 (Tex. App.—El Paso July 26, 2021, no pet.).

2
there are no arguable grounds to be advanced”). Counsel’s “obligation to the appellate courts is to

assure them, through the mechanism of an Anders brief, that, after thorough investigation and

research, his request is well founded.” In re Schulman, 252 S.W.3d 403, 407 (Tex. Crim. App.

2008).

“[A]fter receiving a brief claiming that there are no arguable grounds for appeal, the

reviewing court must review the record to make an independent determination” of whether there

are in fact any arguable grounds for the appeal. Stafford, 813 S.W.2d at 511 (emphasis in original);

Anders, 386 U.S. at 744. If, after conducting an independent review of the record, we conclude

that “appellate counsel has exercised professional diligence in assaying the record for error” and

agree that the appeal is frivolous, we will affirm the trial court’s judgment and allow counsel to

withdraw.3 In re Schulman, 252 S.W.3d 403, 410 n.32 (Tex. Crim. App. 2008) (citing Meza v.

State, 206 S.W.3d 684, 689 (Tex. Crim. App. 2006)). However, if we conclude the Anders brief

does not reflect that counsel made an appropriate and conscientious examination of the record for

error, we may strike the brief and order counsel to re-file a brief that meets the Anders

requirements, or we may abate the appeal and remand to the trial court for the appointment of new

appellate counsel depending on the nature of the deficiencies in the brief. See Hung Le v. State,

510 S.W.3d 96, 100 (Tex. App.—Houston [1st Dist.] 2016, no pet.) (citing Wilson v. State, 40

S.W.3d 192, 198–99 (Tex. App.—Texarkana 2001, no pet.)).

3
A court may not grant a motion to withdraw until:
(1) the attorney has sent a copy of his Anders brief to his client along with a letter explaining that
the defendant has the right to file a pro se brief within thirty days, and he has ensured that his
client has, at some point, been informed of his right to file a pro se PDR;
(2) the attorney has informed the court of appeals that he has performed the above duties;
(3) the defendant has had time in which to file a pro se response; and
(4) the court of appeals has itself reviewed the record, the Anders brief, and any pro se brief.
In re Schulman, 252 S.W.3d 403, 408–09 (Tex. Crim. App. 2008).

3
Generally, an Anders brief may exhibit two types of deficiencies: form and substance. First,

the brief may be deficient as to form, which includes technical violations such as failure to cite to

the record or to legal authority, but may also include the failure to discuss issues appearing

prominently in the record. Wilson, 40 S.W.3d at 199 (citing Stafford, 813 S.W.2d at 510). Such a

brief is of limited use in protecting appellant’s right to counsel on appeal and evaluating whether

the appeal is without merit. Id. at 198–99 (citing High, 573 S.W.2d at 812). In such a situation,

counsel should be afforded the opportunity to file an amended brief to address the deficiencies in

the initial brief. Id. at 199 (citing Stafford, 813 S.W.2d at 510); see also Hung Le, 510 S.W.3d at

100 (directing counsel to rebrief appeal after finding that Anders brief was defective as to form);

Arevalos v. State, 606 S.W.3d 912, 915–16 (Tex. App.—Dallas 2020, no pet.) (same); Banks v.

State, 341 S.W.3d 428, 431 (Tex. App.—Houston [1st Dist.] 2009, no pet.) (same).

Second, an Anders brief may be deficient as to substance if the appellate court’s

independent review of the record “call[s] into question counsel’s conclusion that the appeal is

without merit” on any of the issues addressed in the brief. Wilson, 40 S.W.3d at 199. In that

instance, the court must grant counsel’s motion to withdraw “because counsel cannot be required

to argue grounds he has previously determined to be without merit.” Id. (citing Stafford, 813

S.W.2d at 511). The court must then abate the appeal and remand the case to the trial court for

appointment of new appellate counsel to present the issues the court identified and any other

grounds that might support the appeal. Id. (citing Stafford, 813 S.W.2d at 511; Penson v. Ohio,

488 U.S. 75, 83–84 (1988); Anders, 386 U.S. at 744); see also Arevalos, 606 S.W.3d at 915–16

(citing Meza, 206 S.W.3d at 688–89 (“It is only when an Anders brief is not well taken that it also

becomes necessary to appoint or substitute new counsel.”)).

4
Here, we conclude that the brief is deficient as to form, rather than substance. In the brief,

appellate counsel states that he found no meritorious issues for review with respect to the

following: (1) the sufficiency of the indictment; (2) pretrial and trial rulings; (3) jury selection; (4)

jury charge; (5) the sufficiency of the evidence; and (6) punishment and post-trial rulings.

Although the brief provides a sufficiently thorough discussion of the sufficiency of the indictment,

the sufficiency of the evidence, jury selection, and the jury charge, the brief fails in two important

respects.

First, the brief only discusses one pretrial ruling regarding whether the child-victim’s

cousin could be considered an outcry witness and concludes that the issue is moot, as the State did

not call the cousin as a witness. The brief fails to address any other pretrial or trial rulings made

during either the guilt-innocence phase or the punishment phase of trial. However, our review of

the record reveals that trial counsel made numerous objections during trial that were overruled; the

State made an objection to the introduction of defense evidence, which the trial court sustained;

and trial counsel moved for mistrial during the guilt-innocence phase of the trial, which the trial

court denied, and moved for a second mistrial during the punishment phase, which the trial court

also denied. Counsel does not discuss any of those objections or motions in his Anders brief.4

“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.’” Owens v. State, No. 05-19-00371-CR, 2020 WL

5228149, at *3 (Tex. App.—Dallas Sept. 2, 2020, no pet.) (mem. op., not designated for

publication) (quoting High, 573 S.W.2d at 811 (emphasis in original)); see also Arevalos, 2020

4
The Anders brief mistakenly states that no motion for mistrial was made during the punishment phase of the trial,
when in fact this is contrary to the record.

5
WL 5087778, at *3 (concluding same). This includes rulings that “prevented the defense from

admitting evidence or pursuing a line of questioning, cross-examination, or impeachment of any

witness.” Owens, 2020 WL 5228149, at *3 (citing Arevalos, 2020 WL 5087778, at *3).

We view appellate counsel’s failure to discuss these objections and motions for mistrial—

which appear clearly on the face of the record—as a failure to make a thorough and professional

evaluation of the record.5 See Arevalos, 606 S.W.3d at 916 (finding appellate counsel’s failure to

discuss any of the State’s objections and the trial court’s rulings thereto, together with appellate

counsel’s failure to discuss other issues regarding limitations on defense counsel’s ability to

question a witness as illustrative of appellate counsel’s failure to conduct a conscientious and

thorough review of the law and facts, as required by Anders) (citing Crowe v. State, 595 S.W.3d

317, 320 (Tex. App.—Dallas 2020, no pet.)). As a result, the brief filed by appellate counsel does

not meet the requirements of an Anders brief as set forth in High, and is deficient as to form. Id.

(citing In re N.F.M., 582 S.W.3d 539, 545 (Tex. App.—San Antonio 2018, no pet.) (en banc);

Wilson, 40 S.W.3d at 198–99 (citing High, 573 S.W.2d at 812)); Jimenez v. State, No. 05-18-

00848-CR, 2020 WL 3166740, at *2 (Tex. App.—Dallas June 15, 2020, no pet.) (mem. op., not

designated for publication).

Second, in his Anders brief, defense counsel only discusses the record in cause number

20240D05767, but this does not comprise the entire record—or what should be the entire record—

on appeal. Montellano was initially arrested in August 2020 and indicted in Cause Number

20200D04885 that same year, but he was re-indicted in Cause Number 20240D05767 on October

1, 2024, only one month before his jury trial began on October 30, 2024. The record reflects that

additional motions were filed in the earlier cause number, which were carried over into the current

5
We only list these failures as illustrative of the matters that remain to be reviewed by appellate counsel, but we
express no opinion as to whether there is, or is not, a meritorious issue in this case.

6
cause number, along with the rulings on those motions. Specifically, the record contains the State’s

motion to carry over “all of the previous filings by both the State and the Defense as well all of the

Court’s previous rulings on those filings [in cause number 20200D04885] . . . into this new Cause

Number [20240D05767], without the necessity of either party having to re-file all such documents

and having them re-heard by the Court.” In the motion, the State averred that “[b]oth the State and

defense have filed a number of motions, notices, and other documents under [the prior] cause

number.” The record further contains the trial court’s order granting the State’s motion, providing

that “all of the motions and other filings by both parties in . . . cause number 20200D04885, as

well as all of the Court’s rulings and orders in that cause are hereby carried over into the reindicted

case [in] . . . cause number, 20240D05767.”6

The clerk’s record reflects that in his designation of the appellate record, appellate counsel

designated the reporter’s records of all contested hearings in Cause Number 2020D04885.

However, no such records appear in the appellate record. In addition, appellate counsel sent a letter

to the court reporter requesting a statement of facts regarding various hearings in both cause

numbers, beginning on January 13, 2021, and ending on October 10, 2024. But no such statement

of facts appears in the record. Appellate counsel did not request the clerk’s record for cause number

2020D04885, despite the trial court’s ruling that all motions and rulings would be carried over into

the reindicted case in Cause Number 20240D05767. We conclude that counsel could not have

made a professional evaluation of the record without the benefit of those motions and rulings in

Cause Number 2020D04885, nor can this Court fulfill its duties of conducting an independent

review of the record without them.

6
We note that the trial court’s order bears a clerical error with regard to the defendant’s name.

7
CONCLUSION

Because we have determined that the Anders brief filed by appellate counsel does not fully

comply with the Anders requirements, we cannot address whether counsel has made a thorough

and complete professional evaluation of the record. By separate order this same day, we direct the

district court clerk and the court reporter to prepare supplemental records to be filed with this court

within 30 days. We strike the Anders brief and deny counsel’s motion to withdraw. We direct

appellate counsel to file an amended brief within 30 days after the supplemental records are filed

with this Court, which either (1) addresses arguable issues found within the record, or (2) if, after

a thorough and professional review of the record, counsel still believes no such arguable issues

exist, complies with the requirements of Anders as set forth above.

PER CURIAM

March 30, 2025

Before Salas Mendoza, C.J., Palafox and Soto, JJ.

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