John Michael Weatherly v. State

Opinion

In The Court of Appeals Seventh District of Texas at Amarillo ________________________

No. 07-16-00189-CR ________________________

JOHN MICHAEL WEATHERLY, APPELLANT

V.

THE STATE OF TEXAS, APPELLEE

On Appeal from the 181st District Court Randall County, Texas Trial Court No. 26,147-B; Honorable John B. Board, Presiding

December 15, 2016

ORDER DIRECTING COUNSEL TO PROVIDE APPELLATE RECORD IN ANDERS APPEAL Before QUINN, C.J., and CAMPBELL and PIRTLE, JJ.

Appellant, John Michael Weatherly, appeals his conviction of the offense of

possession of a controlled substance under one gram in a drug-free zone,1 double

enhanced, and sentence of five years confinement. On November 30, 2016,

Appellant’s court-appointed counsel filed a motion to withdraw, supported by a brief filed

1 TEX. HEALTH & SAFETY CODE ANN. § 481.115(a), (b) (West 2010). in accordance with Anders v. California, 386 U.S. 738, 87 S. Ct. 1396, 18 L. Ed. 2d 493

(1967), wherein counsel represented that Appellant’s appeal was frivolous. Counsel

provided a copy of the motion to withdraw and Anders brief to Appellant and advised

him of his right to file a pro se response. Counsel also advised Appellant of his right to

personally review the appellate record in order to determine whether to file a response,

and provided him a form motion for access to the appellate record. See Kelly v. State,

436 S.W.3d 313, 319-20 (Tex. Crim. App. 2014). Now pending before this Court is

Appellant’s Pro Se Motion for Access to Appellate Record filed on December 13, 2016,

requesting that this court provide him a copy of the appellate record. We deny the

motion.

Instead, consistent with our previous orders, we order Appellant’s counsel to

prepare and deliver to Appellant, by whatever means available, a readily accessible

copy of the appellate record on or before December 30, 2016. See Kelly, 436 S.W.3d

at 315 (once a pro se motion for access to the record is filed, “the court of appeals has

the ultimate responsibility to make sure that, one way or another . . . the appellant is

granted access to the appellate record so he may file his response”); Escobar v. State,

134 S.W.3d 338, 339 (Tex. App.—Amarillo 2003, order) (holding that “appointed

counsel has the responsibility to procure a copy of the record for appellant to review in

preparation of his pro se response to the Anders brief”); Ramos v. State, No. 07-13-

00447-CR, 2014 Tex. App. LEXIS 14053, at *3-4 (Tex. App.—Amarillo Sept. 29, 2014,

order) (not designated for publication) (ordering appointed counsel to provide a paper

copy of the appellate record in an Anders appeal when appellant does not have access

to a computer). See also In re L.V., No. 07-15-00315-CV, 2015 Tex. App. LEXIS

2 11607, at *5-6 (Tex. App.—Amarillo Nov. 9, 2016, order) (requiring appointed counsel in

a termination Anders appeal to provide appellant with a readily accessible copy of the

appellate record). Compare with Emmitt v. State, No. 07-15-00119-CR, 2015 Tex. App.

LEXIS 7167, at *1 (Tex. App.—Amarillo July 10, 2015, order) (not designated for

publication) (ordering the clerk of the trial court to deliver to appellant a paper copy of

the appellate record in accordance with unopposed pro se motion for access in an

appeal transferred from the Second Court of Appeals).

Because Appellant is indigent, any cost associated with providing an accessible

appellate record should be submitted to the trial court for payment. Counsel is further

directed to certify to this court, in writing, on or before that date, that she has complied

with this order. Appellant’s pro se response, should he desire to file one, is due on or

before January 30, 2017.

It is so ordered.

Per Curiam

Do not publish.