Opinion
01-23-00274-CR
05-07-2024
Javon Lee Gilbert v. The State of Texas
Trial court: 209th District Court of Harris County Trial court case number: 1409965
ORDER
Richard Hightower Judge
On November 28, 2023, the Court advised appellant's counsel that she had not complied with the requirements of Kelly v. State, 436 S.W.3d 313 (Tex. Crim. App. 2014). In particular, the Court stated that appointed counsel had not filed a letter as required by Kelly. Although the Court's request focused on advising her client of the right to access the record, the Court order also directed appointed counsel to notify us in writing that she had informed appellant of his various pro se rights. Counsel did not comply with this Court's order. Although appellant has filed a motion for access to the record and has been provided with the record, appointed counsel has not provided this Court with proof that counsel advised appellant of his various rights as set out in Kelly.
Kelly requires appointed counsel to write a letter to his client notifying him or her: (1) of the motion to withdraw and the accompanying Anders brief and providing the client with a copy of each; (2) advising the client of his right to file a pro se response and of his right to review the record before filing that response; (3) inform his client of his pro se right to seek discretionary review if the court of appeals declares his appeal frivolous; and (4) "take concrete measures to initiate and facilitate the process of actuating his client's right to review the appellate record, if that is what his client wishes" which means to include a form motion for pro se access to the appellate record lacking only the client's signature and the date and advise the client that he need only sign, date, and send the motion to the court of appeals if he wishes to review the record. Id. at 319-20. At the same time that counsel informs her client of the motion to withdraw and the Anders brief, counsel "should notify the court of appeals, in writing, that she has (1) informed the appellant of the motion to withdraw and attendant Anders brief, (2) provided the appellant with 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 chooses." Id. at 320.
Counsel did not provide this Court with a copy of a letter to the appellant incorporating the requirements of Kelly, but she did state in the Anders brief that she had sent appellant a copy of the brief, motion to withdraw and a form motion for access to the record. Without a copy of the letter sent to the appellant incorporating all the requirements of Kelly, the Court is unable to determine if counsel advised appellant of his right to file a pro se response. Although appellant sought and was granted access to the record, appellant did not file a pro se response.
Accordingly, the Court directs appointed counsel to file within 10 days the letter sent to appellant incorporating all of the Kelly requirements described above.
It is so ORDERED.