Opinion
No. 04-17-00685-CR
07-05-2018
Robert Miles DUNCAN, Appellant v. The STATE of Texas, Appellee
From the 198th Judicial District Court, Bandera County, Texas
Trial Court No. CR-14-0000076
Honorable M. Rex Emerson, Judge Presiding
ORDER
Appellant's court-appointed attorney filed a brief and motion to withdraw pursuant to Anders v. California, 386 U.S. 738 (1967), in which he asserted there are no meritorious issues to raise on appeal. Counsel certified he served copies of the brief and motion on appellant, informed appellant of his right to review the record and file his own brief, and provided appellant with a form motion for requesting the record and explained to appellant the procedure for obtaining the record. See Kelly v. State, 436 S.W.3d 313, 319 (Tex. Crim. App. 2014); Nichols v. State, 954 S.W.2d 83 (Tex. App.—San Antonio 1997, no pet.); Bruns v. State, 924 S.W.2d 176, 177 n.1 (Tex. App.—San Antonio 1996, no pet.). Appointed counsel filed the Anders brief on April 3, 2018, and thereafter, his motion to withdraw on April 11, 2018. When appellant had not filed the record request form provided by appointed counsel by May 23, 2018, we ordered him to file his pro se brief, if any, on or before July 9, 2018. However, rather than filing his brief, on July 2, 2018, appellant filed the motion provided by counsel, requesting a copy of the appellate record.
Accordingly, we ORDER the clerk of this court to send a copy of the appellate record — the clerk's and reporter's records — to appellant. We further ORDER appellant to file his pro se brief in this court on or before August 20, 2018. If appellant files a timely pro se brief, the State may file a responsive brief no later than thirty days after appellant's pro se brief is filed in this court. The motion to withdraw filed by appellant's counsel will continue to be held in abeyance pending further order of the court. See Penson v. Ohio, 488 U.S. 75, 80-82 (1988) (holding that motion to withdraw should not be ruled on before appellate court independently reviews record to determine whether counsel's evaluation that appeal is frivolous is sound); Schulman v. State, 252 S.W.3d 403, 410-11 (Tex. Crim. App. 2008) (same).
We further order the clerk of this court to serve a copy of this order on appellant, his counsel, and the attorney for the State.
/s/_________
Marialyn Barnard, Justice
IN WITNESS WHEREOF, I have hereunto set my hand and affixed the seal of the said court on this 5th day of July, 2018.
/s/_________
KEITH E. HOTTLE,
Clerk of Court