Scott Richard Pendergraft v. State ( 2018 )

COURT OF APPEALS FOR THE
FIRST DISTRICT OF TEXAS AT HOUSTON
ORDER
Appellate case name: Scott Richard Pendergraft v. The State of Texas
Appellate case numbers: 01-18-00033-CR & 01-18-00034-CR
Trial court case numbers: 1512987 & 1512988
Trial court: 262nd District Court of Harris County
Appellant’s court-appointed counsel filed a brief on July 19, 2018, concluding that
the above-referenced related appeals are frivolous. See Anders v. California, 386 U.S. 738,
744, 87 S. Ct. 1396, 1400 (1967). However, counsel has not filed a motion to withdraw
from representation with the Clerk of this Court. If appointed counsel believes that an
appeal is frivolous, counsel must request permission to withdraw. See Anders, 386 U.S. at
744. An Anders brief must accompany a motion to withdraw, neither the brief nor the
motion may be filed on its own. See id.; In re Schulman, 252 S.W.3d 403, 406–08 (Tex.
Crim. App. 2008).
In addition, although counsel attached a certificate of counsel to his Anders brief,
counsel has not filed a separate notice of compliance, or otherwise certified that he has
written a letter to appellant, in accordance with Kelly v. State, 436 S.W.3d 313 (Tex. Crim.
App. 2014), “to (1) notify his client of the motion to withdraw and the accompanying
Anders brief, providing him with 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, [] (3)
inform him of his pro se right to seek discretionary review should the court of appeals
declare his appeal frivolous,” and (4) “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 with the
applicable court of appeals,” which letter 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.” 436 S.W.3d at 319–20.
Accordingly, we order appellant’s appointed counsel, Terrence Gaiser, to file a
motion to withdraw and send a letter to the appellant in accordance with Kelly. See TEX.
R. APP. P. 6.5, 9; Kelly, 436 S.W.3d at 319–20. We further order appellant’s appointed
counsel to notify us in writing “that he has (1) informed the appellant of the motion to
withdraw and attendant Anders brief, (2) provided the appellant with the requisite copies
while notifying him of his various pro se rights, and (3) supplied him with a form motion
for pro se access to the appellate record.” Kelly, 436 S.W.3d at 320. Because appellant
already filed a pro se motion for access to the appellate record on July 23, 2018, counsel
does not need to send the form motion to his client but should notify his client as provided
above.
Counsel shall send the required letter to his client and shall file the required motion
to withdraw and Kelly notice with the Clerk of this Court within 10 days of the date of
this order. See TEX. R. APP. P. 6.5, 9; Schulman, 252 S.W.3d at 410, 412.
It is so ORDERED.
Judge’s signature: /s/ Evelyn V. Keyes

Date: July 26, 2018