Hugo Alberto Hernandez v. State ( 2017 )

COURT OF APPEALS FOR THE
FIRST DISTRICT OF TEXAS AT HOUSTON
ORDER
Appellate case name: Hugo Alberto Hernandez v. The State of Texas
Appellate case number: 01-16-00795-CR
Trial court case number: 1083518
Trial court: 230th District Court of Harris County
After abating the appeal and remanding to the trial court for a hearing to determine why
appellant’s brief had not been filed, appellant’s appointed counsel filed a brief concluding that
the above-referenced appeal is frivolous. See Anders v. California, 386 U.S. 738, 744, 87
S. Ct. 1396, 1400 (1967). Anders requires the filing of a motion to withdraw with the
brief. See 386 U.S. at 741, 87 S. Ct. at 1399. Appointed counsel has not filed the required
motion to withdraw and has failed to comply with the requirements of Kelly v. State, 436
S.W.3d 313 (Tex. Crim. App. 2014). Kelly requires an appointed lawyer to write a letter
to his client to:
(1) notify his client of the motion to withdraw and the
accompanying Anders brief, providing him a copy of each,
(2) inform him of his right to file a pro se response and of his
right to review the record preparatory to filing that response,
and
(3) inform him of his pro se right to seek discretionary review
should the court of appeals declare his appeal frivolous.
Id. at 319. Additionally, appointed counsel must “notify his client that, should he wish to
exercise his right to review the appellate record in preparing to file a response to the
Anders brief, he should immediately file a motion for pro se access to the appellate
record” and counsel should include a form motion for access to the record with his letter.
Id.Appointed counsel’s brief contains a short notice to the client of his right to file a
response, but this notice is insufficient. Appointed counsel has not filed a motion to
withdraw or a copy of the letter sent to appellant, or otherwise certified, that he advised
appellant that if he wishes to exercise his right to review the appellate record in preparing
to file a response to the Anders brief, he should immediately file a motion for pro se
access to the appellate record with the applicable court of appeals, which includes “a
form motion . . . lacking only the appellant’s signature and the date, . . . inform[ing] the
appellant that, in order to effectuate his right to review the appellate record pro se, should
[he] choose to invoke it, [he] must sign and date the motion and send it on to the court of
appeals within ten days of the date of the letter from appellate counsel.” Id. at 319–20.
Accordingly, we order appointed counsel, Eusebvio Chevo Pastrano, to send a
letter and a form motion to appellant in accordance with Kelly. See id. We further order
appellant’s appointed counsel to file a motion to withdraw and provide this court with a
copy of the letter and form motion sent to appellant by October 24, 2017. See id. at 320.
The order of October 3, 2017, abating and remanding to the trial court for a
hearing is WITHDRAWN and the appeal is REINSTATED on the active docket.
It is so ORDERED.
Judge’s signature: /s/ Michael Massengale
 Acting individually  Acting for the Court
Date: October 17, 2017