Antonio Trevino v. State ( 2004 )

ANTONIO I. TREVINO V. THE STATE OF TEXAS NO. 07-04-0066-CR

IN THE COURT OF APPEALS

FOR THE SEVENTH DISTRICT OF TEXAS

AT AMARILLO

PANEL D

AUGUST 26, 2004

______________________________



ANTONIO I. TREVINO, APPELLANT

V.

THE STATE OF TEXAS, APPELLEE



_________________________________

FROM THE 137TH DISTRICT COURT OF LUBBOCK COUNTY;

NO. 2003-402258; HONORABLE CECIL G. PURYEAR, JUDGE

_______________________________

Before QUINN and REAVIS and CAMPBELL, JJ.

ORDER

Following the filing of an Anders brief by appointed counsel, ⁽¹⁾ appellant filed a pro se request for a copy of the appellate record. Attached to the request is a copy of a letter written by appellant to his appointed counsel. In the letter, appellant asks his attorney to file a motion for extension of time to allow appellant time to file a response to the Anders brief. Appellant also asks his attorney to provide him with a copy of the appellate record.

When the Anders brief was filed, appointed counsel also filed a motion to withdraw; however, the motion has yet to be ruled on by this Court. See generally Penson v. Ohio, 488 U.S. 75, 80-82, 109 S. Ct. 346, 102 L. Ed. 2d 300 (1988) (holding that a motion to withdraw should not be ruled on before an appellate court makes its own independent review of the record to determine whether counsel's evaluation that the appeal is frivolous is sound); see also Nichols v. State, 954 S.W.2d 83, 86 (Tex.App.-San Antonio 1997, no pet.). An appellate court should not proceed to address the merits of the appeal until after the pro se response is received or a reasonable opportunity for filing one has lapsed. Wilson v. State, 955 S.W.2d 693, 696 (Tex.App.-Waco 1997, no pet.).

Counsel has provided us with a copy of his letter to appellant informing him of his right to review the record and file a pro se response to the Anders brief. In the letter counsel suggests appellant advise either him or the Clerk of this Court to make arrangements to review the record.

It is well settled that the trial court has the duty to provide an indigent defendant with an adequate record on appeal. Newman v. State, 937 S.W.2d 1, 3 (Tex.Crim.App. 1996) (en banc), citing Abdnor v. State, 712 S.W.2d 136. 139 (Tex.Crim.App. 1986) (en banc). The Texas Rules of Appellate Procedure provide that in criminal cases the trial court clerk and the court reporter must prepare the clerk's record and reporter's record in duplicate. See Tex. R. App. P. 34.5(g) & 34.6(h). The rules also direct that the trial court clerk retain a copy of the clerk's record and that the court reporter file a copy of the reporter's record with the trial court clerk for use by the parties with permission of the trial court. Rule 34.5(g) & 34.6(h). This court has held that it is appointed counsel's responsibility to procure a copy of the record for appellant to review in preparation of his pro se response to the Anders brief. Escobar v. State, 134 S.W.3d 338, 339 (Tex.App.-Amarillo 2003, no pet.). ⁽²⁾

Accordingly, appellant's pro se request that this court provide him a copy of the appellate record is denied. Appointed counsel should immediately request permission from the trial court to obtain the duplicate clerk's and reporter's records filed with the trial court clerk for use by appellant in preparation of his response. Appellant is granted an extension of the due date for his response to his counsel's Anders brief; the response shall be filed with the clerk of this court no later than September 30, 2004.

It is so ordered.

Per Curiam

Do not publish.

1. Anders v. California, 386 U.S. 738, 87 S. Ct. 1396, 18 L. Ed. 2d 493 (1967).

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