Opinion
Appellate case number: 01-14-00158-CR
01-08-2015
DJ Christopher Lowe v. The State of Texas
ORDER Trial court case number: 10-DCR-055397 Trial court: 400th Judicial District Court of Fort Bend County
Appellant's court-appointed counsel filed a brief concluding that the above-referenced appeal is frivolous. See Anders v. California, 386 U.S. 738, 744, 87 S. Ct. 1396, 1400 (1967). Although counsel included a cover letter to appellant, dated November 20, 2014, stating that a motion to withdraw was enclosed, counsel has not, however, filed a motion to withdraw from representation.
If appointed counsel believes that an appeal is frivolous, counsel must request permission to withdraw. See id. An Anders brief must accompany a motion to withdraw because neither the brief nor the motion may be filed on its own. See id.; In re Schulman, 252 S.W.3d 403, 406-08 (Tex. Crim. App. 2008).
In addition, counsel has not filed a separate cover letter in accordance with Kelly v. State, 436 S.W.3d 313 (Tex. Crim. App. 2014), "to (1) notify his client of the motion to withdraw and the accompanying Anders brief, providing him with 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) "notify his client that, should he wish to exercise his right to review the appellate record in preparing to file a response to the Anders brief, he should immediately file a motion for pro se access to the appellate record with the applicable court of appeals," which letter includes "a form motion . . ., lacking only the appellant's signature and the date, . . . inform[ing] the appellant that, in order to effectuate his right to review the appellate record pro se, should he choose to invoke it, he must sign and date the motion and send it on to the court of appeals within ten days of the date of the letter from appellate counsel." 436 S.W.3d at 319-20.
Accordingly, we order appellant's appointed counsel, Mark W. Racer, to file with the Clerk of this Court a motion to withdraw that complies with Texas Rules of Appellate Procedure 6.5 and 9, and file and mail an updated cover letter to appellant in accordance with Kelly. See TEX. R. APP. P. 6.5, 9; Kelly, 436 S.W.3d at 319-20; Schulman, 252 S.W.3d at 410, 412. We further order appellant's appointed counsel to notify us, in writing, "that he has (1) informed the appellant of the motion to withdraw and attendant Anders brief, [and] (2) provided the appellant with the requisite copies while notifying him of his various pro se rights, and (3) supplied him with a form motion for pro se access to the appellate record (and the mailing address for the court of appeals), to be filed within ten days, so that he may timely effectuate that right, if he so choose." Kelly, 436 S.W.3d at 319. Because the Clerk of this Court mailed appellant a form pro se motion for access to the appellate record on December 31, 2014, counsel does not need to send another form motion to his client, but should notify his client as provided above.
Counsel shall send the required letter to his client and shall file the required motion to withdraw and notice with the Clerk of this Court within 15 days of the date of this order.
It is so ORDERED. Judge's signature: /s/ Evelyn V. Keyes
[v] Acting individually [ ] Acting for the Court
Date: January 8, 2015