Cite as 2026 Ark. App. 400
ARKANSAS COURT OF APPEALS
DIVISIONS I & IV
No. CR-25-801
Opinion Delivered September 16, 2026
JASON HERNANDEZ
APPELLANT APPEAL FROM THE BENTON
COUNTY CIRCUIT COURT
[NOS. 04CR-18-1507; 04CR-18-1837;
V. 04CR-19-946; 04CR-19-2068; 04CR19-2069]
STATE OF ARKANSAS HONORABLE BRAD KARREN,
APPELLEE JUDGE
REBRIEFING ORDERED; MOTION
TO WITHDRAW DENIED
N. MARK KLAPPENBACH, Chief Judge
Jason Hernandez appeals from the order of the Benton County Circuit Court
revoking his probation in five cases. On appeal, Hernandez’s counsel has filed a no-merit
brief and a motion to withdraw pursuant to Anders v. California, 386 U.S. 738 (1967), and
Arkansas Supreme Court Rule 4-3(b), asserting that there is no issue of arguable merit to
raise on appeal. Hernandez was notified of his right to file pro se points in response to
counsel’s brief, but he has not done so. Due to deficiencies in counsel’s brief, we deny
counsel’s motion and order rebriefing.
In June 2019, Hernandez entered a negotiated guilty plea to four Class D felonies in
exchange for being placed on six years’ probation. The offenses were theft of property,
breaking or entering, possession of a controlled substance, and possession of drug paraphernalia.1 In 2020, Hernandez pleaded guilty to three more Class D felonies—two
counts of breaking or entering and one count of theft of property—in exchange for being
placed on five years’ probation.2 The State subsequently moved to revoke Hernandez’s
probation in all five cases. In May 2024, Hernandez pleaded true to violating his probation
and was placed on four years’ probation for each of the seven offenses.
In August 2024, the State again moved to revoke Hernandez’s probation. A
revocation hearing was held in August 2025, at which the State presented the testimony of
Hernandez’s probation officer, two law enforcement officers, and a forensic chemist. At
the conclusion of the hearing, the circuit court found that the State had met its burden of
proving by a preponderance of the evidence that Hernandez had inexcusably violated the
terms and conditions of his probation. The court sentenced Hernandez to six years’
imprisonment on each offense, to run concurrently.
A request to withdraw on the ground that the appeal is wholly without merit shall
be accompanied by a brief. Ark. Sup. Ct. R. 4-3(b). The brief shall contain an argument
section that consists of a list of all rulings adverse to the defendant made by the circuit court
on all objections, motions, and requests made by either party with an explanation as to why
each adverse ruling is not a meritorious ground for reversal. Id. The requirement for
briefing every adverse ruling ensures that the due-process concerns in Anders are met and
prevents the unnecessary risk of a deficient Anders brief resulting in an incorrect decision on
1
The charges were brought under three case numbers: CR-18-1507, CR-18-1837, and CR-19-946.
2
These offenses were charged under two case numbers: CR-19-2068 and CR-19-2069.
2
counsel’s motion to withdraw. Jeffries v. State, 2022 Ark. App. 274. Pursuant to Anders, we
are required to determine whether the case is wholly frivolous after a full examination of all
the proceedings. Id. A no-merit brief in a criminal case that fails to address an adverse
ruling does not satisfy the requirements of Rule 4-3(b), and rebriefing will be required. Id.
Here, counsel states that the sole adverse ruling “can be argued to be” the revocation.
She then states, “However, the decision to revoke one’s probation is not a meritorious
ground for reversal.” Counsel’s brief concludes by noting that appellant made no objections
or motions below, and “[a]s such, there is nothing to brief . . . .” This brief fails to comply
with Rule 4-3(b). The revocation decision is an adverse ruling, and the Rule requires
counsel to provide “an explanation as to why each adverse ruling is not a meritorious ground
for reversal.” Counsel’s argument section includes no reference to the evidence, the circuit
court’s findings, or our standard of review, and there is no explanation as to why an appeal
of the revocation decision would be wholly without merit. 3 Accordingly, we order
rebriefing. See Hill v. State, 2024 Ark. App. 385 (holding that a brief that provides scant
substantive reasoning and does little to explain how the facts apply to the law is deficient);
3
The dissenting judge’s citation to counsel’s one-sentence, wholly conclusory “point heading” as proof of a compliant brief is unpersuasive; our courts have long held that argument headings are meaningless when there is no developed argument. See Camp v. State, 66 Ark. App. 134, 136 n.1, 991 S.W.2d 611, 614 n.1 (1999). The dissenting judge’s focus on “the first ten pages of the brief” (i.e., the table of contents, jurisdictional statement, and statement of the case and facts) does not render the argument section unnecessary. We have not faulted counsel for her two-and-a-half-page statement of the case and facts; rather, her one-page argument section is noncompliant.
3
Jefferson v. State, 2013 Ark. App. 325 (ordering rebriefing due to counsel’s failure to explain
why the revocation decision is not a meritorious ground for reversal).4
Hernandez’s counsel has fifteen days from the date of this opinion to file a substituted
brief that complies with the rules. Counsel is encouraged to review the record for any
additional deficiencies.
Rebriefing ordered; motion to withdraw denied.
ABRAMSON, HIXSON, and MURPHY, JJ., agree.
THYER, J., concurs.
HARRISON, J., dissents.
CINDY GRACE THYER, Judge, concurring. In Anders v. California, the Supreme
Court considered “the extent of the duty of a court-appointed appellate counsel to prosecute
a first appeal from a criminal conviction, after that attorney has conscientiously determined
that there is no merit to the indigent’s appeal.” 386 U.S. 738, 739 (1967). The Court held
that even in the context of a no-merit appeal, counsel must “act[] in the role of an active
advocate in behalf of his client, as opposed to that of amicus curiae[,]” and in that role,
counsel must “support his client’s appeal to the best of his ability.” Id. at 744. To that end,
4
The dissenting judge discusses in detail his review of the underlying facts of the case. However, the governing law on the subject is clear: the attorney’s brief must include “an explanation as to why each adverse ruling is not a meritorious ground for reversal”; counsel’s mere “rehash[ing] the facts from the trial” is insufficient in this context; and “an appellate court’s independent review” is not a “substitute for defense counsel’s responsibility” and cannot alone satisfy the requirements of Anders and Rule 4-3. Kou Her v. State, 2015 Ark. 91, at 8, 457 S.W.3d 659, 664; see also Sartin v. State, 2010 Ark. 16, 362 S.W.3d 877; Ark. Sup. Ct. R. 4-3(b).
4
the Court established the framework that has guided no-merit appeals for over half a
century:
[I]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.
Id. The purpose of the Anders brief is both “to provide the appellate courts with a basis for
determining whether appointed counsel have fully performed their duty to support their clients’
appeal to the best of their ability” and to aid the court in its “critical determination whether
the appeal is indeed so frivolous that counsel should be permitted to withdraw.” McCoy v.
Court of Appeals of Wisconsin, 486 U.S. 429, 439 (1988) (emphasis added).
Our court has enshrined this concept and this procedure in Arkansas Supreme Court
Rule 4-3(b)(1), which provides in pertinent part as follows:
A request to withdraw on the ground that the appeal is wholly without merit
shall be accompanied by a brief. The brief shall contain an argument section that
consists of a list of all rulings adverse to the defendant made by the circuit court on
all objections, motions and requests made by either party with an explanation as to why
each adverse ruling is not a meritorious ground for reversal. The brief’s statement of the case
and the facts shall contain, in addition to the other material parts of the record, all
rulings adverse to the defendant made by the circuit court and the page number
where each adverse ruling is located in the appellate record.
(Emphasis added.)
In Kou Her v. State, 2015 Ark. 91, 457 S.W.3d 659, and Sartin v. State, 2010 Ark.
16, 362 S.W.3d 877, our supreme court stressed that it is counsel’s responsibility, not this
court’s, to adequately address each adverse ruling in a no-merit appeal. Kou Her noted that
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“the role of the appellate court is to perform its own review, not act as an advocate for the
defendant.” 2015 Ark. 91, at 5, 457 S.W.3d at 662. Sartin held that “[w]e cannot affirm an
appellant’s conviction and allow an attorney to withdraw without adequate discussion as to
why a particular ruling by the [circuit] court should not be a meritorious ground for
reversal.” 2010 Ark. 16, at 4, 362 S.W.3d at 880.
This court has consistently held that it is imperative that counsel follow the
appropriate procedure when filing a motion to withdraw as counsel. See Walton v. State, 94
Ark. App. 229, 231, 228 S.W.3d 524, 525–26 (2006); Brown v. State, 85 Ark. App. 382, 155
S.W.3d 22 (2004). This framework is a “method of ensuring that indigents are afforded their
Constitutional rights.” Campbell v. State, 74 Ark. App. 277, 279, 47 S.W.3d 915, 917 (2001).
Moreover, while it is this court’s duty to fully examine the record to determine if an appeal
would be wholly without merit, it is not our duty to do so with the purpose of instructing
counsel what to include in a no-merit brief. Rodriguez v. State, 2026 Ark. App. 8, at 2.
This court has likewise consistently ordered rebriefing when counsel has provided
only a conclusory statement that there are no adverse rulings that would present a ground
for a meritorious appeal. See Hill v. State, 2024 Ark. App. 385, at 2 (ordering rebriefing
when counsel “simply identifie[d] the adverse ruling; cite[d] the applicable rule, case law,
or standard of review; and provide[d] a conclusory sentence that the ruling was not in
error”); Kelley v. State, 2018 Ark. App. 448, at 2 (ordering rebriefing when counsel “simply
describe[d] the circuit court’s ruling and provide[d] a conclusory statement, such as ‘[t]he
Court was correct in its actions’”); Rainey v. State, 2014 Ark. App. 383, at 3–4, 439 S.W.3d
67, 69 (ordering rebriefing when counsel did not explain why an adverse ruling was not a
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meritorious ground for reversal, did not mention the standard of review, and made only
conclusory statements regarding the rectitude of the circuit court’s ruling).
The instant case does not present a departure from these and many other similar
opinions. The argument portion of the brief here states only that
[t]he sole adverse ruling in this record can be argued to be that of the by [sic] the
trial court, i.e. the revocation itself. However the decision to revoke one’s probation
is not a meritorious ground for reversal. Probation may be revoked upon a finding
by a preponderance of the evidence that the defendant has inexcusably failed to
comply with a condition of the probation.
This sort of conclusory statement has repeatedly been found to necessitate rebriefing because
it does not comply with Rule 4-3(b)(1)’s requirement to provide “an explanation as to why
each adverse ruling is not a meritorious ground for reversal.” (Emphasis added.)
Accordingly, today’s majority opinion does precisely what it should––nothing more,
nothing less.
BRANDON J. HARRISON, Judge, dissenting. Because the majority views
appointed counsel’s brief in too uncharitable a light, I dissent. There is no merit to an appeal
of the circuit court’s revocation, and no change in the briefing will alter that fact. The
majority, if it does anything, only “teaches” counsel a briefing lesson. But that lesson is
misplaced if not tethered to an affirmance. We waste counsel’s time by ordering another
brief. We also delay entry of the mandate unnecessarily. Finally, the decision charges a
time debt to the next panel that must touch this wholly frivolous appeal.
* * *
The record, as reported to us in counsel’s brief, establishes with the certainty of 1 +
1 = 2 that the mandate should issue and counsel be relieved. Hernandez, an adjudicated
7
multiple-count felon for conduct ranging many years, was placed on probation for years.
Basically, from 2018 through 2024, he was stumbling left and right, even landing himself in
the Oklahoma Department of Corrections. This appeal relates to a petition to revoke the
State of Arkansas filed in mid-2024 on five underlying cases, while Hernandez was already
on probation. He pled “true” to the petition on eight counts (theft, drug crimes, breaking
or entering) and received four years’ probation. In August 2024, the State filed another
petition to revoke, alleging multiple violations that had occurred in July 2024 (three drugrelated felonies, felony tampering with physical evidence, and misdemeanor refusing to
submit to an arrest).
After some delay due to rescheduling, a hearing was set on 28 August 2025, by which
time the State had twice amended its petition to revoke. 1 After the hearing in which
Hernandez was represented by counsel, the Benton County Circuit Court found four of
the second amended petition’s allegations “true” and one “not true.” The court revoked
Hernandez’s probation and sentenced him to serve six years in the Arkansas Division of
Corrections. Of course, there was an appeal.
Why are six judges on this case today when three usually suffice? Because we have,
as mentioned, taken too stringent a view on what the briefing responsibility is for appointed
appellate counsel in this case. Her brief tells us Hernandez was detained during a traffic stop
(more detail is interesting but legally irrelevant) and “a baggy fell out of [his] pants after he
1
Hernandez had apparently been in custody in Washington County and was ordered to appear in person in the Benton County Circuit Court at some point. In any event, he appeared by video at the revocation hearing (possibly even from an Oklahoma correctional facility).
8
was placed in handcuffs and stood up.” In front of the police. 2 The baggy’s content was
tested at the crime lab. Result: 13.9877 grams of methamphetamine. Counsel’s brief also
informs us that “[p]ost Miranda, [Hernandez] stated he had just purchased the
methamphetamine from someone else at the hotel where [law enforcement] surveillance
began. Hernandez was on probation with a valid warrantless search waiver on file.” So we
learn from the brief (and the hyperlinked record) that Hernandez had methamphetamine
on his person (or right near him). And he admitted that he had just bought the drug at the
police-surveilled hotel. He also had a meth pipe when arrested, see footnote 2.
If we need to know more than this then counsel provides it—albeit uber succinctly
and sans artistry.
* * *
A man on probation after originally pleading guilty to felonies is arrested—during an
unchallenged traffic stop—for possessing bona fide methamphetamine and possessing and
then smashing a meth pipe. That man, Hernandez, also admitted during police questioning
that he had just bought the drug from a surveilled location. No chance that an appellate
court would ever reverse the probation revocation given these facts, all of which were
adduced at the August 2025 hearing and hyperlinked to, or summarized in, counsel’s brief.
Counsel also informs us that “[hearing] counsel did not lodge a single objection or make
any motion on behalf of Hernandez during trial. He did not move for a directed verdict.
2
Detective John Mackey testified, “[Hernandez] had a meth pipe in his possession that he apparently tried to destroy, and then a baggy containing what was later determined to be methamphetamine was located where he was standing.” Corporal Morgan Abernathy said that Hernandez “grabbed a pipe out of his pocket and it smashed on the top of the bed of the truck.” Counsel’s brief states the main points to know.
9
He had no questions for any of the State’s witnesses. No witnesses were presented by
[Hernandez].” Hearing counsel said after the State rested, “Yes, I don’t have any witnesses
or evidence for the true not true, Your Honor.” I pulled that quotation from the transcript
in seconds using the helpful hyperlinks in appellate counsel’s brief, of which there are
dozens. Finally, Hernandez “chose not to testify.”
Staying on hyperlinks, our coveted friends in the electronic-record era, there’s one
worth “clicking” on page 9 of counsel’s brief. It jumps to page 52 of the hearing transcript.
There we can all read these words from the circuit court, in seconds, “I’m not gonna order
him to pay anything. He’s good about paying. He’s not good about reporting. He’s not
good about not committing new felonies while he’s out on probation.” (Emphasis added.) On page
10 of counsel’s brief appears the bottom line, again: “[Hernanadez] was found to have
inexcusabl[y] violated the terms of his probation, his probation on all five cases was revoked
and he was sentenced to a period of six years on all felony matters.”
If you still need more, let’s go. The argument section of the brief opens with this
point heading: “A. The Circuit Court’s Findings, That the Petitions to Revoke
[Hernandez’s] Probation Should Be Granted, Are Not a Meritorious Ground for Reversal.”
More legally correct words have scarcely been written. As this section quickly unfolds it
communicates counsel’s understanding of the stakes while reminding each judge again that
there were no objections to anything—not to any witness testimony, prehearing process,
intra-hearing process, or exhibit. All of this means ipso facto that there’s nothing to say but
the obvious: Hernandez’s probation was revoked and there is no meritorious argument to
the contrary. 1 + 1 = 2.
10
The majority says, “The revocation decision is an adverse ruling, and the Rule
requires counsel to provide ‘an explanation as to why each adverse ruling is not a meritorious
ground for reversal.’” If pages 1-10 of counsel’s brief did not communicate this appeal’s fait
accompli, did the point heading of the argument section (page 11) not do it? A probationer
cannot possess methamphetamine (or a meth pipe). I don’t know what more can be said.
Counsel’s brief cites Anders v. California, 386 U.S. 738 (1967) and Ark. Sup. Ct. R.
4-3(b)(1). It provides dozens of hyperlinks to the record, whose efficiency and usefulness I
have illuminated. The brief reports a complete procedural and factual history of the case
and therefore shows an understanding of counsel’s role and the stakes, as I have also shown.
Simply put, counsel included all that is minimally required in this case.
The majority says, “Counsel’s argument section includes no reference to the
evidence, the circuit court’s findings, or our standard of review, and there is no explanation
as to why an appeal of the revocation decision would be wholly without merit.” But the
first ten pages of the brief and its embedded hyperlinks report the evidence reliably. The
point heading to the Argument section highlights what happened and why, again, on page
11.
Could counsel’s brief be more polished? Sure. A few more words here and there
could have been injected as filler. But drafting a compelling read here is not required.
To the majority’s complaint that counsel left out the “standard of review,” it is only
partially correct. The phrase “preponderance of the evidence” is used in the brief, which is
getting close, though counsel admittedly did not reach four decimal points of precision the
lab-tested meth sample achieved. Had she only added “Is the revocation clearly against the
11
. . . ?”. But it cannot matter here how one phrases any standard of appellate review. Not
in a case where a felon probationer smashed a meth pipe in front of the police and possessed
13.9877 grams of methamphetamine, in public, on or right near his person—all beyond any
physical-and-ontological doubt—and without any objection being made below. Under any
standard of review, no matter how phrased, the circuit court’s robust record chins the bar
faster than a professional Cross Fitter on caffeine (one is tempted to say methamphetamine).
* * *
Hernandez’s counsel had no objections below; there were apparently none to make.
The majority spots none, or it would have said so, as we have done scores of times. When
appellate judging separates from the pier of practicality, especially when the record and case
history is overwhelmingly against the appellant in a criminal no-merit context, we should
pause and think hard on what comes next. Because I side with appointed counsel’s justified
assumptions that an experienced appellate court would know this is a wholly frivolous appeal
given what she provided in her brief, I would hold that she satisfied Rule 4-3(b)(1), affirm
the revocation, and grant the motion to withdraw. Ordering more to be done turns judicial
economy’s pockets inside out.
In Whitt v. State, 2025 Ark. App. 588, I concurred with a decision on a motion for
rule on clerk, writing separately to grumble about the steady proliferation of such motions
given lawyers’ oversights on jurisdictional matters involving notices of appeal and records.
I began this way, “Dear Criminal Defense Lawyers: Please Do Better. The lack of care
shown to jurisdictional details, like the rather mundane but critical task of filing a record on
appeal on time, is ballooning to the point of bursting.” Today, I write separately to say this
12
court should have done better for court-appointed counsel who provided an important
public service. I trust the misstep today will not balloon to the point of bursting.
I respectfully dissent.
Sharon Kiel, for appellant.
One brief only.
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