Jose Fransisco Mendoza-Navarro v. State ( 2020 )

COURT OF APPEALS FOR THE
FIRST DISTRICT OF TEXAS AT HOUSTON
ORDER
Appellate case name: Jose Fransisco Mendoza-Navarro v. The State of Texas
Appellate case number: 01-18-00706-CR
Trial court case number: 1542074
Trial court: 176th District Court of Harris County
In September 2019, appointed counsel David L. Garza filed a motion to withdraw and the
accompanying brief required by Anders v. California, 386 U.S. 738 (1967). The State filed a
waiver of response on November 26, 2019. After receiving a request to access the record, the Court
issued an order directing the trial court clerk to provide appellant with access to the record.
Purporting to act as appellant’s retained counsel, Peyton Z. Peeples III, tendered on January 24,
2020, “Appellant’s Response to Anders Brief.” Because two attorneys had made appearances
claiming to represent appellant, this Court issued an order requiring Peeples either to file a motion
to substitute or to present the Court with authority permitting a retained attorney to file a response
to an Anders brief. Peeples filed a motion to substitute on February 3, 2020; however, the motion
states that Peeples wishes to be substituted only to respond to the Anders brief.
The provision for filing an Anders response is to permit the indigent appellant to point out
“any reason why he thinks there are non-frivolous issues to be raised on his behalf, notwithstanding
his appointed counsel’s evaluation of the record.” Kelly v. State, 436 S.W.3d 313, 315 (Tex. Crim.
App. 2014). The Anders procedure does not contemplate retained counsel filing the response to
appointed counsel’s brief. Accordingly, this Court issued an order abating the appeal and
remanding to the trial court to determine whether to grant Garza’s motion to withdraw and appoint
new counsel on appeal, or permit retained counsel Peeples to be substituted as appellant’s counsel.
If Peeples were permitted to act as appellant’s counsel, he would represent appellant not only in
response to an Anders brief because, if Garza withdrew, the Anders brief he filed would no longer
be considered.
A supplemental clerk’s record was filed on March 5, 2020, indicated that the trial court
granted Garza’s motion to withdraw, and permitted Peeples to serve as retained substitute counsel
on appeal.
Accordingly, the appeal is reinstated on the active docket. David L. Garza’s motion to
withdraw has been granted and the Anders brief filed by Garza is stricken. Peyton Z. Peeples III
will serve as retained counsel on appeal. Appellant’s brief is due to be filed within 30 days from
the date of this order.
It is so ORDERED.
Judge’s signature: ___/s/ Peter Kelly______
 Acting individually  Acting for the Court
Date: __April 9, 2020___