Opinion
No. 04-15-00333-CR
10-16-2015
Mario Ismael GUTIERREZ, Appellant v. The STATE of Texas, Appellee
From the 227th Judicial District Court, Bexar County, Texas
Trial Court No. 2013CR4433
Honorable Philip A. Kazen, Jr., Judge Presiding
ORDER
Counsel for the appellant has filed a brief pursuant to Anders v. California, 386 U.S. 738 (1967), in which he asserts there are no meritorious issues to raise on appeal. However, counsel did not file a motion to withdraw and counsel's letter to appellant is deficient.
Appointed counsel who files an Anders brief is required to simultaneously file a motion to withdraw. See Schulman v. State, 252 S.W.3d 403 (Tex. Crim. App. 2008); Nichols v. State, 954 S.W.2d 83, 85 (Tex. App.—San Antonio 1997, no pet.).
When counsel files an Anders brief, he is required to include as an exhibit a copy of the letter sent to his client. The letter must: (1) notify appellant that counsel has filed an Anders brief and motion to withdraw and enclose copies of the documents, (2) inform appellant of his right to review the appellate record and file a pro se brief, (3) inform appellant of his right to file a pro se petition for discretionary review should the court of appeals determine the appeal is frivolous, and (4) "take concrete measures to initiate and facilitate the process of actuating [appellant's] right to review the appellate record, if that is what [appellant] wishes." Kelly v. State, 436 S.W.3d 313, 319-20 (Tex. Crim. App. 2014; Ex parte Owens, 206 S.W.3d 670674 n. 28 (Tex. Crim. App. 2006); Meza v. State, 206 S.W.3d 684 (Tex. Crim. App. 2006). With respect to the last requirement, counsel may either send a copy of the appellate record to his client or advise his client that if he wishes to review the appellate record, he must file a motion in this court within ten days of counsel's letter, requesting access to the record. See Kelly, 436 S.W.3d at 319-20. Counsel must include with his letter a form motion for this purpose, advise his client to sign and date the motion and mail it to this court within ten days, and supply his client with this court's mailing address. Id. at 320.
Counsel's letter to his client includes a copy of the Anders brief, but does not comply with any of the other requirements listed above. We therefore order appellant's appointed counsel, George Shaffer, to file by October 26, 2015 a motion to withdraw and a copy of a letter that complies with the requirements of Kelly v. State.
/s/_________
Luz Elena D. Chapa, Justice
IN WITNESS WHEREOF, I have hereunto set my hand and affixed the seal of the said court on this 16th day of October, 2015.
/s/_________
Keith E. Hottle
Clerk of Court