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Hightower v. State

COURT OF APPEALS FOR THE FIRST DISTRICT OF TEXAS AT HOUSTON
Nov 14, 2017
Appellate case number: 01-17-00714-CR (Tex. App. Nov. 14, 2017)

Opinion

Appellate case number: 01-17-00714-CR

11-14-2017

Melvin Lee Hightower v. The State of Texas


ORDER Trial court case number: 15-CR-0040 Trial court: 212th District Court of Galveston County

Appellant's court-appointed counsel prematurely submitted a motion to withdraw and appellate brief on October 23, 2017, before the clerk's record had been filed, 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). On October 27, 2017, the clerk's record was filed in this Court, completing the appellate records. See TEX. R. APP. P. 38.6(a)(1). Thus, the Clerk of this Court is directed to mark appellant's counsel's motion to withdraw and Anders brief as filed on October 27, 2017, and to mail the form motion for pro se access to the appellate record to the pro se appellant. See id. 27.2.

In addition, although counsel's motion states that he forwarded a copy of the motion and Anders brief to the appellant, and informed appellant of his right to file a response and seek discretionary review with the Texas Court of Criminal Appeals, 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, Thomas A. Martin, to mail an updated cover letter to appellant, as noted above, in accordance with Kelly. See 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, which includes an extension request, counsel does not need to send another form motion to his client, but should notify his client as provided above.

Counsel shall file the required Kelly notice with the Clerk of this Court and send the required updated letter to his client within 10 days of the date of this order. See Kelly, 436 S.W.3d at 319-20.

It is so ORDERED. Judge's signature: /s/ Evelyn V. Keyes

[v] Acting individually [ ] Acting for the Court Date: November 14, 2017


Summaries of

Hightower v. State

COURT OF APPEALS FOR THE FIRST DISTRICT OF TEXAS AT HOUSTON
Nov 14, 2017
Appellate case number: 01-17-00714-CR (Tex. App. Nov. 14, 2017)
Case details for

Hightower v. State

Case Details

Full title:Melvin Lee Hightower v. The State of Texas

Court:COURT OF APPEALS FOR THE FIRST DISTRICT OF TEXAS AT HOUSTON

Date published: Nov 14, 2017

Citations

Appellate case number: 01-17-00714-CR (Tex. App. Nov. 14, 2017)