I find it ironic that a counsel get paid for an alleged conscientious examination ......that anders voucher is requesedt

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IN THE COURT OF CRIMINAL APPEALS OF TEXAS AP-74,996 Ex parte BRIAN KEITH OWENS, Applicant Application for Writ of Habeas Corpus from Tyler County Womack, J., filed a concurring opinion in which Cochran, J., joined. The Court says, ante at 8, "We fail to perceive any principled reason that our holding in Wilson should not apply equally to an appellant whose attorney files an Anders brief." I believe there is a principled reason. More important than that reason are the facts that the Wilson/Axel requirement is based on a fallacy, and it doesn't work. The Principled Reason. The principled reason that the holding in Wilson (1) should not apply when counsel files an Anders brief is that such an attorney must sever the attorney-client relationship. The entire reason for the Anders procedure is counsel's ethical obligation not to assert frivolous claims. (2) As the Anders opinion says: 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; the court -- not counsel -- then proceeds, after a full examination of all the proceedings, to decide whether the case is wholly frivolous. If it so finds it may grant counsel's request to withdraw and dismiss the appeal insofar as federal requirements are concerned, or proceed to a decision on the merits, if state law so requires. On the other hand, if it finds any of the legal points arguable on their merits (and therefore not frivolous) it must, prior to decision, afford the indigent the assistance of counsel to argue the appeal. (3) Whether he was correct or incorrect about there being no arguable grounds, the lawyer who files an Anders brief is leaving the case. This distinguishes the appellate lawyer from the trial lawyer. Even when the trial has ended in the conviction of the defendant, trial counsel's duty extends to advising him whether to appeal, as we held in Ex parte Axel: Precise obligations are laid out in ABA Standards Relating to the Administration of Justice ("Standards"), The Defense Function, Part VIII. After Conviction. After sentencing, the lawyer explains to defendant "meaning and consequences" of the judgment and "his right to appeal." He expresses his professional opinion as to "meritorious grounds for appeal and as to probable results of an appeal," as well as its "advantages and disadvantages." "The decision whether to appeal must be the defendant's …." The lawyer "should take whatever steps are necessary to protect the defendant's right of appeal." § 8.2 Appeal, Standards, at 135. (4) The appellate counsel who has filed an Anders brief because he has found the appeal to be wholly frivolous could not continue to give advice to the client about whether to seek further review. So there is a principled distinction here, which the Wilson Court ignored when it extended to all appellate counsel the same duty it imposed on all trial counsel in Axel. The Axel Fallacy. I find irony in this because, in my view, the Axel Court's reasoning was clearly wrong when it gave trial counsel, and only trial counsel, the duty to advise the defendant how to perfect an appeal without a lawyer. The reasoning in Axel was, "Informing a defendant of his right to appeal is part and parcel of also further advising him along lines of the Standards, ante, in order to make a decision whether to take an appeal. Surely a judge is precluded from giving that kind of advice, and who better than an attorney who tried the case is qualified to assay and advise his client of probabilities of error?" (5) It is true that, if a defense lawyer advises a defendant whether to appeal, the defendant will get the idea that there is such a thing as an appeal. And it is true that a judge is precluded from advising a defendant whether to appeal. But a judge is not precluded from telling every convicted defendant that he has a right of appeal and that to have an appeal he must file written notice of appeal within thirty days. No other jurisdiction that I know of has committed the fallacy of giving trial counsel, rather than the trial court, the responsibility to inform a defendant of the right to appeal and the procedures for appealing. Perhaps other jurisdictions considered that having this done by thousands of lawyers in confidential, off-the-record meetings with clients would be less reliable than having it done by the judge in open court, on the record. (6) If there was any justification for doing that in Axel, there was none for doing it in Wilson. It Doesn't Work. Not a decision day passes without this court's granting habeas corpus relief, in the form of out-of-time appeals or petitions for discretionary review, to convicted defendants whose counsel failed to carry out the responsibilities that the Court gave them in Axel and Wilson. We should, and we can, have a better method of informing defendants of their rights and duties in the appellate process. FILED: SEPTEMBER 13, 2006 PUBLISH 1. Ex parte Wilson, 956 S.W.2d 25 (Tex. Cr. App. 1997). 2. "A lawyer shall not bring or defend a proceeding, or assert or controvert an issue therein, unless the lawyer reasonably believes that there is a basis for doing so that it not frivolous." Tex. Disciplinary R. Prof'l Conduct 3.01. 3. Anders v. California, 386 U.S. 738, 744 (1967). 4. 757 S.W.2d 369, 373 (Tex. Cr. App. 1988). 5. 757 S.W.2d, at 373. 6. See, e.g., FED. R. CRIM. P. 32(j) (requiring the court to advise the defendant of any right to appeal, and requiring the clerk to immediately prepare and file a notice of appeal on the defendant's behalf if the defendant so requests).