Earnest Utley v. State

Opinion

IN THE TENTH COURT OF APPEALS

No. 10-17-00391-CR

EARNEST UTLEY, Appellant v.

THE STATE OF TEXAS, Appellee

From the 278th District Court Walker County, Texas Trial Court No. 27683

ORDER

Counsel for Appellant, Earnest Utley, filed an Anders1 brief. Counsel informed

Appellant of his right to review the record and file a pro se response, though it does not

appear that counsel provided Appellant with a copy of the record in this case. See

generally Kelly v. State, 436 S.W.3d 313 (Tex. Crim. App. 2014). On October 1, 2018,

1 Anders v. California, 386 U.S. 738, 87 S. Ct. 1396, 18 L. Ed. 2d 493 (1967). Appellant filed a request for “a complete copy of the appellate record.” Appellant’s

request for documents is granted and will be implemented as provided for herein.

In accordance with Stanley v. State, No. 10-14-00320-CR, 2015 Tex. App. LEXIS

4719 (Tex. App.—Waco May 7, 2015, order) (per curiam), counsel is ORDERED to obtain

and send to Appellant, within 14 days from the date of this order, copies of the clerk’s

record, reporter’s record, and all documents in the appellate record and to

simultaneously notify this Court, the State, the trial court, and the trial court clerk when

counsel has completed this task. In the event that the record made available to Appellant

must be returned to the trial court clerk, counsel must notify Appellant and this Court of

that fact.

Counsel is reminded that there are certain rules and statutes that prohibit certain

sensitive or illegal information from being included in a public record. See TEX. R. APP.

P. 9.10. If counsel has identified any such information while conducting the review of the

record as necessary to prepare the Anders brief in support of counsel’s motion to

withdraw, counsel should take appropriate steps to redact or in some manner remove

that information from the copy of the record that is being provided to Appellant.

Appellant is ORDERED to file his pro se response to counsel’s Anders brief within

30 days from the date counsel sends notice to the Court that the record has been

forwarded to Appellant, unless the due date is extended by order of this Court upon

proper and timely motion by Appellant. If counsel notified Appellant and this Court that

Utley v. State Page 2 the record being provided to Appellant was obtained from the trial court clerk and must

be returned thereto, Appellant is ORDERED to not take the record apart or mark on or

modify the record.

If the record must be returned to the trial court clerk, so that its return to the trial

court clerk can be monitored and enforced, Appellant is ORDERED to send the record to

this Court with Appellant’s response. If no response is filed, but nevertheless, the record

must be returned to the trial court clerk, Appellant is ORDERED to send the record to

this Court within 45 days of the date the attorney sends notice to the Court that the record

was forwarded to the Appellant, unless the due date is extended by order of this Court

upon proper and timely motion by Appellant.

Appellant’s failure to comply with this Order, including the failure to send the

record to this Court within the time specified, if herein required, may result in the

dismissal of the appeal under our inherent authority upon the presumption that the

record was obtained under false pretense and with no intent to pursue the appeal but

instead was obtained for the purposes of delay.

Additionally, in his request for the record, appellant also asks for the appointment

of new counsel in this case. We first note that appellant is currently represented by

counsel who has filed an Anders brief and who has not been allowed to withdraw at this

time. It is only if we find an arguable, non-frivolous issue in this case will the case be

remanded to the trial court for the appointment of new counsel. See In re Schulman, 252

Utley v. State Page 3 S.W.3d 403, 410-11 (Tex. Crim. App. 2008) (“Under the Anders procedure, the motion to

withdraw will not be granted until the appellate court decides whether the appeal is, in

fact, wholly frivolous, or whether there are any arguable claims of merit. In either event,

the motion to withdraw will be granted and either the appeal will be dismissed or the

case abated to the trial court for appointment of new counsel.”). And furthermore, the

appointment of counsel for an indigent defendant is under the sole authority of the trial

court. See Enriquez v. State, 999 S.W.2d 906, 907-08 (Tex. App.—Waco 1999, order); TEX.

CODE CRIM. PROC. ANN. art. 26.04(a) (West Supp. 2017); cf. Meza v. State, 206 S.W.3d 684,

688 (Tex. Crim. App. 2006). During an appeal, the trial court retains jurisdiction to

appoint counsel for an indigent defendant. See Enriquez, 999 S.W.2d at 908; see also Meza,

206 S.W.3d at 688. Therefore, based on the foregoing, we deny appellant’s request for the

appointment of new counsel at this time.

PER CURIAM

Before Chief Justice Gray, Justice Davis, and Justice Scoggins Order issued and filed October 10, 2018 Do not publish

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