Opinion
Appellate case number: 01-15-00041-CR
06-16-2015
Apolinar Marquez Camposano v. The State of Texas
ORDER Trial court case number: 08-05-04380-CR Trial court: 284th District Court of Montgomery County
Appellant's court-appointed counsel has filed a motion to withdraw and appellate brief concluding that the above-referenced appeal is frivolous. See Anders v. California, 386 U.S. 738, 744, 87 S. Ct. 1396, 1400 (1967); In re Schulman, 252 S.W.3d 403, 406 (Tex. Crim. App. 2008). While counsel's Anders brief cover page has the correct appellate cause number, it lists a different trial court cause number and trial court than the ones listed above taken from the notice of appeal. See TEX. R. APP. P. 9.4(g), (k).
Pursuant to the Texas Supreme Court's docket equalization powers, this appeal was transferred from the Ninth Court of Appeals to this Court on January 8, 2015. See TEX. GOV'T CODE ANN. § 73.001 (West Supp. 2014); Order Regarding Transfer of Cases From Courts of Appeals, Misc. Docket No. 14-9246 (Tex. Dec. 15, 2014).
Also, although counsel's motion states that he forwarded a copy of the motion and Anders brief to the appellant, counsel has not filed a separate cover letter or notice in accordance with Kelly v. State, 436 S.W.3d 313 (Tex. Crim. App. 2014). Under Kelly, appointed counsel must "(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, Michael Corey Young, to file an amended Anders brief, correcting only the trial court cause number and trial court, and to mail a cover letter to appellant in accordance with Kelly. See TEX. R. APP. P. 9.4(g); Kelly, 436 S.W.3d at 319-20. We further order appellant's appointed counsel to file a notice with the Clerk of this Court "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 will mail appellant a form pro se motion for access to the appellate record, counsel does not need to send the form motion to his client, but should notify his client as provided above.
Counsel shall file the amended Anders brief and the required Kelly notice with the Clerk of this Court and send the required updated letter to his client, with the amended Anders brief, within 10 days of the date of this order or this Court may strike the brief. See TEX. R. APP. P. 9.4(k).
It is so ORDERED. Judge's signature: /s/ Evelyn V. Keyes
[×] Acting individually
Date: June 16, 2015