Johnny Lee Childress, Jr. v. State

Opinion

COURT OF APPEALS FOR THE

FIRST DISTRICT OF TEXAS AT HOUSTON

ORDER

Appellate case name: Johnny Lee Childress, Jr. v. The State of Texas

Appellate case number: 01-16-00416-CR

Trial court case number: 15-DCR-070013A

Trial court: 400th District Court of Fort Bend County

On September 15, 2016, this Court ordered Michael C. Diaz, the court-appointed counsel for appellant, Johnny Lee Childress, Jr., to file a motion to withdraw with an amended Anders brief and a Kelly notice within 10 days of that order. See Anders v. California, 386 U.S. 738, 744, 87 S. Ct. 1396, 1400 (1967); Kelly v. State, 436 S.W.3d 313, 319–20 (Tex. Crim. App. 2014). On September 22, 2016, this Court’s order granted the motion for access to the appellate record filed by the pro se appellant and granted him a 45-day extension of time to file any response to the Anders brief.

However, also on September 22, 2016, the Clerk of this Court received a letter, submitted by the pro se appellant on September 20, 2016, giving notice that appellant wants to withdraw this appeal in response to the Anders brief, but it was not signed by counsel. The Clerk of this Court is directed to file appellant’s letter as a pro se letter- motion to dismiss. Under Rule 42.2(a), any voluntary motion to dismiss in a criminal appeal must contain both the signature of appellant’s counsel and the appellant, and it must be filed in duplicate with the Clerk of this Court. See TEX. R. APP. P. 42.2(a).

Accordingly, the Court DENIES appellant’s pro se letter-motion to dismiss this appeal without prejudice to refiling by appellant’s counsel because it was neither signed by counsel nor filed in duplicate. See TEX. R. APP. P. 42.2(a). The Court withdraws both the September 15 and 22, 2016 Orders and will consider a motion to dismiss filed by appellant’s counsel in compliance with Rule 42.2(a).

It is so ORDERED.

Judge’s signature: /s/ Laura C. Higley  Acting individually

Date: September 27, 2016