Opinion
No. 04-16-00389-CR
10-19-2016
Paul PADILLA, Jr., Appellant v. The STATE of Texas, Appellee
From the 399th Judicial District Court, Bexar County, Texas
Trial Court No. 2014CR2112
Honorable Ray Olivarri, Judge Presiding
ORDER
Appellant's court-appointed appellate counsel filed a brief pursuant to Anders v. California, 368 U.S. 738 (1967). On October 11, 2016, appellant filed a motion requesting access to the appellate record. See Kelly v. State, 436 S.W.3d 313, 320-21 (Tex. Crim. App. 2014). After review, we GRANT appellant's motion. We ORDER the clerk of this court to prepare and send a full and complete duplicate copy of the clerk's record and the reporter's record, including the MP4s that are part of the reporter's record, in appellate cause number 04-16-00389-CR (trial court cause number 2014CR2112) to appellant at Ellis Unit # 2080525, 1697 FM 980, Huntsville, TX 77343.
The form motion provided by appointed counsel to appellant — and subsequently filed by appellant — for the purpose of obtaining the appellate record was incorrect under Kelly. The form should have requested both the clerk's record and the reporter's record. However, in the interest of judicial economy, we construe the form as a request for both portions of the appellate record. Counsel is advised that in future cases in which an Anders brief is filed, the form provided to the appellant by counsel should include a request for all portions of the appellate record. --------
If, after reviewing the record, appellant desires to file a pro se brief, he must file the pro se brief in this court within thirty days from the date the appellate record is sent by this court to appellant. If the appellant files a pro se brief, the State may file a responsive brief no later than thirty days after the date the appellant's pro se brief is filed in this court.
We further ORDER the motion to withdraw filed by appellant's counsel 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 order the clerk of this court to serve a copy of this order on all counsel and appellant.
/s/_________
Marialyn Barnard, Justice
IN WITNESS WHEREOF, I have hereunto set my hand and affixed the seal of the said court on this 19th day of October, 2016.
/s/_________
Keith E. Hottle
Clerk of Court