Opinion
Appellate case number: 01-14-00672-CR
05-28-2015
Ahmed Jabbori v. The State of Texas
ORDER Trial court case number: 1401652 Trial court: 183rd District Court of Harris County
Appellant, Ahmed Jabbori, pleaded guilty, without a plea-bargain agreement, to the felony offense of aggravated assault with a deadly weapon. The trial court accepted appellant's plea and found sufficient evidence to find appellant guilty, but deferred making any finding regarding appellant's guilt and placed appellant on community supervision for a period of five years. Appellant, through his retained counsel, Neal Davis, III, timely filed a notice of appeal. Counsel, who continued to represent appellant on appeal, has filed a motion to withdraw from his representation of appellant because, after reviewing the record, he concluded that the appeal is frivolous and without merit. In support of his motion to withdraw, Counsel filed a brief pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396 (1967).
"Only appointed counsel are required to file an Anders brief. Retained counsel are not required to do so." Knotts v. State, 31 S.W.3d 821, 822 (Tex. App.—Houston [1st Dist.] 2000, no pet.) (citing Nguyen v. State, 11 S.W.3d 376, 379 (Tex. App.—Houston [14th Dist.] 2000, no pet.)). "A retained attorney, upon determining that an appeal is frivolous, must so inform this Court and seek leave to withdraw by filing a motion complying with rule 6.5 of the Texas Rules of Appellate Procedure." Id. Accordingly, we strike the Anders brief filed by appellant's retained counsel.
Further, counsel's motion to withdraw does not meet the requirements of rule 6.5 because it fails to (1) provide appellant's last known address and telephone number, (2) contain a statement that a copy of the motion was delivered to appellant, and (3) state that appellant was notified in writing of the right to object to the motion. See TEX. R. APP. P. 6.5(a)(2)-(4), (b). We therefore deny counsel's motion to withdraw.
Because appellant's retained counsel has represented to the Court that the appeal is frivolous, and counsel is under an ethical duty to refuse to prosecute a frivolous appeal, we order appellant's counsel to file a motion to withdraw that complies with Rule 6.5 within 14 days of the date of this order. See TEX. R. APP. P. 6.5. Counsel states in both his brief and his motion to withdraw that he "has attempted communication with the Appellant to no avail" and that he "understands that the Appellant is currently detained by the Department of Homeland Security and is awaiting deportation." If counsel is unable to obtain current contact information for appellant, counsel should detail his efforts to obtain appellant's contact information in his motion to withdraw and should provide appellant's last known address.
It is so ORDERED. Judge's signature: /s/ Michael Massengale
[×] Acting individually [ ] Acting for the Court
Date: May 28, 2015