Barry Dean Garrett v. State

• Court: Court of Appeals of Texas
• Decided: January 28, 2010
• Docket: 03-09-00061-CR
• Status: Published

Opinion

TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN

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ON MOTION FOR REHEARING

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NO. 03-09-00061-CR

Barry Dean Garrett, Appellant

v.

The State of Texas, Appellee

FROM THE DISTRICT COURT OF BELL COUNTY, 264TH JUDICIAL DISTRICT

NO. 63208, HONORABLE MARTHA J. TRUDO, JUDGE PRESIDING

O R D E R

PER CURIAM

Appellant Barry Dean Garrett has filed a motion for rehearing in the above cause. In the motion, Garrett states that he did not receive a copy of his counsel's brief and motion to withdraw as required by Anders v. California, 386 U.S. 738 (1967). Our prior opinion was based on evidence in the record that counsel had mailed to Garrett a copy of counsel's brief and motion to withdraw but that the package was "returned to sender, refused." Additionally, this Court had mailed correspondence to Garrett informing him that counsel had filed an Anders brief on his behalf, but our correspondence was also "returned to sender, refused." However, in his motion for rehearing, Garrett states that he has never refused any of the mail sent by counsel or this Court.

The State has filed a response to Garrett's motion. The State does not dispute Garrett's claim that he never received the aforementioned mail and, assuming Garrett's sworn statement is true, has "no objection to the granting of a rehearing or other procedure the Court may deem appropriate to withdraw the opinion and allow the Appellant time to respond to the motion to withdraw and brief filed by counsel on his behalf."

We grant the motion for rehearing, withdraw our opinion and judgment dated November 10, 2009, and reinstate the case. Counsel for Garrett is instructed to personally deliver to Garrett the documents that counsel had previously sent to Garrett by mail, including a copy of his motion to withdraw, the accompanying brief, and a copy of the record if counsel determines that Garrett has not already received a copy from the district clerk. Counsel shall certify to this Court in writing that he has complied with this order no later than February 8, 2010. Garrett is ordered to file his pro se brief no later than March 9, 2010.

It is ordered January 28, 2010.

Before Justices Patterson, Puryear and Pemberton

Do Not Publish