Jesse Najera v. State

• Court: Court of Appeals of Texas
• Decided: March 8, 2018
• Docket: 04-17-00570-CR
• Status: Published

Opinion

Fourth Court of Appeals San Antonio, Texas March 8, 2018

No. 04-17-00570-CR

Jesse NAJERA, Appellant

v.

The STATE of Texas, Appellee

From the 226th Judicial District Court, Bexar County, Texas Trial Court No. 2016-CR-4704 Honorable Sid L. Harle, Judge Presiding

ORDER

On February 26, 2018, appellant’s appointed counsel filed a motion to withdraw as counsel. Attached to her motion was a copy of a brief pursuant to Anders v. California, 368 U.S. 738 (1967) and a copy of a letter informing her client of various rights. Although the brief was attached to the motion as an exhibit, the brief was not filed in this court as a separate document. See Anders, 368 U.S. at 744 (indicating request to withdraw must be accompanied by a brief).

Moreover, counsel’s letter to her client fails to comply with Kelly v. State, 436 S.W.3d 313 (Tex. Crim. App. 2014) because it does not inform appellant of appellant’s pro se right to seek discretionary review should the court of appeals declare appellant’s appeal frivolous. See Kelly, 436 S.W.3d at 319-20. The letter also does not establish whether counsel took concrete measures “to initiate and facilitate the process of actuating his client’s right to review the appellate record” because the letter does not indicate whether a form motion for pro se access to the appellate record was provided by counsel to appellant. See id. at 320. The letter should further advise appellant that the form motion should be filed within ten days, so that he may timely effectuate his right. See id.

We therefore ORDER appellant’s counsel to file a copy of his brief as a separate document in this court on or before March 19, 2018. We further ORDER appellant’s counsel to provide a letter to appellant complying with Kelly v. State on or before March 19, 2018. The letter should inform appellant of the above mentioned rights and include a copy of a form motion for pro se access to the appellate record. Appellant is also ORDERED to file a response in this court on or before March 23, 2018 that such letter was provided to appellant.

_________________________________ Marialyn Barnard, Justice

IN WITNESS WHEREOF, I have hereunto set my hand and affixed the seal of the said court on this 8th day of March, 2018.

___________________________________ Keith E. Hottle Clerk of Court