Molly Ortiz v. State

Opinion

Order entered October 4, 2018

In The Court of Appeals Fifth District of Texas at Dallas No. 05-18-00081-CR

MOLLY ORTIZ, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the Criminal District Court No. 2 Dallas County, Texas Trial Court Cause No. F16-30318-I

ORDER On September 17, 2018, the Clerk of the Court transmitted a letter to appellant’s counsel

directing counsel to provide written verification showing counsel had sent appellant a letter that

(1) notified her of counsel’s motion to withdraw and accompanying Anders brief; (2) informed

her of her right to review the record and prepare a pro se response to the Anders brief; and (3)

informed her of her right to seek discretionary review in the event of an adverse judgment from

this Court. The Clerk’s letter further directed counsel to provide the Court with current contact

information and a mailing address for appellant. On September 27, 2018, counsel responded that

she had not sent appellant the required letter because there is no indication in the trial court

record of appellant’s address and the telephone number trial counsel gave her for appellant’s

mother is incorrect. Counsel did not describe any other efforts to find her client. An appellant who fails to keep her attorney informed of her current address forfeits the

right to receive a copy of the Anders brief and the right to file a pro se response. In re Schulman,

252 S.W.3d 403, 408 n.21 (Tex. Crim. App. 2008) (citing Gonzales v. State, 903 S.W.2d 404,

405 (Tex. App.—Texarkana 1995, no pet.). In finding that an appellant has forfeited the right to

participate in the Anders process, however, courts generally describe the reasonable

investigations appellate counsel made to try to find his or her client. See, e.g., Gonzales, 903

S.W.2d at 405 (counsel was unable to locate appellant even with the assistance of law

enforcement and prison officials); Tavera v. State, No. 03-13-00102-CR, 2014 WL 4536534, at

*1 (Tex. App.—Austin Sept. 12, 2014, no pet.) (not designated for publication) (counsel was

unable to find appellant, who had been deported to remote section of Mexico, even with

assistance of appellant’s family); Maxwell v. State, No. 08-00-00420-CR, 2001 WL 665581

(Tex. App.—El Paso June 14, 2001, no pet.) (counsel could not locate appellant because

appellant was discharged from prison without providing forwarding address, counsel had no

names or addresses of any relatives, and appellant’s only listed address was a motel room).

Accordingly, we ORDER appellate counsel to perform, within TEN DAYS of the date

of this letter, a reasonable investigation to determine if appellant can be located and contacted

regarding her appeal. Such an investigation may include determining whether appellant has a

listed telephone number, contacting trial counsel to determine if trial counsel has other address

information on appellant or appellant’s relatives, and contacting appellant’s community

supervision officer to determine if the officer has an address for appellant.1

If counsel is able to locate appellant, we ORDER appellate counsel to transmit to

appellant copies of the motion to withdraw, the Anders brief, and the letter informing appellant

1 We note that during the motion to suppress hearing, appellant testified she lives in Grand Prairie “on the corner of Grand Prairie Road and Center.”

–2– of her rights and then file a letter with the Court, within FOURTEEN DAYS of the date of this

letter, verifying that she has transmitted the motion, brief, and letter of rights to appellant.

If appellate counsel is unable to locate appellant after a reasonable investigation, we

ORDER appellate counsel to file, within FOURTEEN DAYS of the date of this letter, a letter

setting forth what efforts appellate counsel undertook to locate appellant.

/s/ CRAIG STODDART JUSTICE

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