Opinion
07-21-00255-CR
06-08-2022
HUBERT EARL TEAGUE III, APPELLANT v. THE STATE OF TEXAS, APPELLEE
Do not publish
On Appeal from the 108th District Court Potter County, Texas Trial Court No. 80, 847-E-CR, Honorable Douglas R. Woodburn, Presiding
Before QUINN, C.J., and PARKER and DOSS, JJ.
ORDER STRIKING ANDERS RESPONSE FILED BY COUNSEL
PER CURIAM.
Appellant Hubert Earl Teague III appeals his conviction for online solicitation of a minor and sentence to six years' confinement. His appointed appellate counsel, Donna Christie, has filed a motion to withdraw and an Anders brief certifying that after a diligent search of the record, the appeal is without merit. Appellant's pro se response was originally due March 21, 2022.
On March 21, Appellant's trial counsel, James Wooldridge, filed a "Motion for Substitution of Counsel and Extension of time to File Appellant's Anders Response." We construed Wooldridge's motion as a notice of appearance and a request for an extension of time for Appellant to file a pro se response. See Carrillo v. State, No. 07-13-00186-CR, 2014 Tex.App. LEXIS 2324, at *3 (Tex. App.-Amarillo Feb. 24, 2014, order) (per curiam) (not designated for publication) (doing same). By letter, we permitted Wooldridge to assist Appellant in preparing a pro se response due April 20. Wooldridge, instead, filed a second request for an extension of time to file an Anders response. We stuck the motion and notified Appellant that the cause would be submitted on May 13. However, we also notified Appellant that if a pro se response was received before that date, it would be considered by the Court.
On May 13, Wooldridge filed an "Anders Response for the Appellant" fully briefing four issues for review. The response was signed by Wooldridge as "attorney" for Appellant. It prayed that we "sustain the Appellant's issues and reverse his conviction and remand this cause to the trial court and order the entry of acquittal, where appropriate, in favor of Appellant and against the State of Texas, or otherwise order Appellant be granted a new trial."
The procedure established in Anders v. California and its progeny contemplates the filing of a pro se response to a motion to withdraw and Anders brief, not a brief on the merits filed by new counsel. See Anders v. California, 386 U.S. 738, 744-45, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967) ("A copy of counsel's brief should be furnished to the indigent and time allowed him to raise any points that he chooses."); Bledsoe v. State, 178 S.W.3d 824, 827 (Tex. Crim. App. 2005) ("Under Anders, an appellant has a right to review the Anders brief that counsel submitted and to respond to it on his own."). The purpose of the pro se response "is not to permit the court of appeals to decide the case on the merits; it is intended only to alert the appellate court to any matters that the defendant believes might be arguable in a brief on the merits." In re Schulman, 252 S.W.3d 403, 409 n.23 (Tex. Crim. App. 2008). Accordingly, "the pro se filing is not a merits brief, it is merely an informal opportunity for the indigent defendant to present what he believes are claims or issues or areas of procedural or substantive concern that arguably deserve a full merits brief by a second attorney." Id.
Because the "Anders Response for the Appellant" was filed by an attorney and not by Appellant, pro se, and Wooldridge failed to comply with a previous order of the Court, we strike the document. See Carrillo, 2014 Tex.App. LEXIS 2324, at *5-6. If Appellant wishes to file a response, pro se, presenting what he believes are issues of procedural or substantive concern, he may do so by July 8, 2022, and it shall be considered by the Court. Appellant is free to rely on Wooldridge's work product in drafting the pro se response.
It is so ordered.