Opinion
08-23-00309-CR
06-11-2024
LEONARD JOHNSON JR., Appellant, v. THE STATE OF TEXAS, State.
Appeal from the County Court at Law No. 13 of Bexar County, Texas (TC# 675115)
Before Alley, C.J., Palafox and Soto, J.J.
ORDER
Pursuant to Tex.R.App.P. 10.4 (a) the motion ruled on through this Order may have been decided by a single Justice sitting on the panel.
Trisha Morales Padia, Counsel for Appellant, filed a brief pursuant to Anders v. California asserting that this appeal is frivolous and presents no issues of arguable merit. Anders v. California, 386 U.S. 738 (1967). On April 18, 2024, Counsel certified to this Court that she provided Appellant with a copy of the Anders brief, her motion to withdraw, and a motion for pro se access to the appellate record lacking only Appellant's signature and date. She further certified that she informed Appellant of his right to file a pro se response and right to seek discretionary review should this Court find his appeal frivolous. However, in the letter Ms. Morales Padia sent to Appellant, which is included with the Anders brief, she incorrectly advised Appellant that this Court would set a briefing schedule and notify him of the deadlines to file his pro se response. In the Court's original filing notice, this Court informed counsel that it does not set briefing schedules or send individual notices for deadlines.
On May 15, 2024, Ms. Morales Padia filed a document titled "Return of Service," which provided a photocopied image of an envelope sent certified mail from Counsel's law offices to Appellant's address. The envelope is marked "Return to Sender," "Vacant," "Unable to Forward." Therefore, the record does not demonstrate that Appellant received a copy of Counsel's letter, her Anders brief, or her motion to withdraw.
On May 7, 2024, this Court sent notice to Appellant's last known address advising him that the Court intended to pass on Ms. Morales Padia's motion to withdraw and instead consider it with the case. That notice was returned to this Court as undeliverable. This Court has made multiple attempts to locate Appellant and forward to him notice of Ms. Morales Padia's motion to withdraw. As of the date of this order, all attempts to send Appellant notice have been returned to this Court as undeliverable.
The record before us fails to demonstrate that Appellant received a copy of the Anders brief, her motion to withdraw, and her letter to Appellant describing the steps needed to take to file a pro se brief. Ms. Morales Padia has therefore failed to demonstrate that the educational requirements of Anders were met. Because the record in this case negates Ms. Morales Padia's certificate of counsel, the Court ORDERS Ms. Morales Padia to file an affidavit, which describes the efforts she took to locate Appellant, and do so WITHIN 15 DAYS of this order, so that the Court may consider whether Counsel's efforts to locate Appellant are an adequate substitute to comply with minimum due process.
If counsel is able to locate Appellant, we order her to send Appellant a corrected letter delineating the steps he must take if he wishes to file a pro se brief, together with a copy of her Anders brief and her motion to withdraw, and to thereafter provide this Court with an updated certificate of compliance.
IT IS SO ORDERED.