John Michael Weatherly v. State ( 2016 )

In The
Court of Appeals
Seventh District of Texas at Amarillo
________________________
No. 07-16-00189-CR
________________________
JOHN MICHAEL WEATHERLY, APPELLANT
V.
THE STATE OF TEXAS, APPELLEE
On Appeal from the 181st District Court
Randall County, Texas
Trial Court No. 26,147-B; Honorable John B. Board, Presiding
December 15, 2016
ORDER DIRECTING COUNSEL TO PROVIDE
APPELLATE RECORD IN ANDERS APPEAL
Before QUINN, C.J., and CAMPBELL and PIRTLE, JJ.
Appellant, John Michael Weatherly, appeals his conviction of the offense of
possession of a controlled substance under one gram in a drug-free zone,1 double
enhanced, and sentence of five years confinement. On November 30, 2016,
Appellant’s court-appointed counsel filed a motion to withdraw, supported by a brief filed
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TEX. HEALTH & SAFETY CODE ANN. § 481.115(a), (b) (West 2010).
in accordance with Anders v. California, 386 U.S. 738, 87 S. Ct. 1396, 18 L. Ed. 2d 493(1967), wherein counsel represented that Appellant’s appeal was frivolous. Counsel
provided a copy of the motion to withdraw and Anders brief to Appellant and advised
him of his right to file a pro se response. Counsel also advised Appellant of his right to
personally review the appellate record in order to determine whether to file a response,
and provided him a form motion for access to the appellate record. See Kelly v. State,
436 S.W.3d 313, 319-20 (Tex. Crim. App. 2014). Now pending before this Court is
Appellant’s Pro Se Motion for Access to Appellate Record filed on December 13, 2016,
requesting that this court provide him a copy of the appellate record. We deny the
motion.
Instead, consistent with our previous orders, we order Appellant’s counsel to
prepare and deliver to Appellant, by whatever means available, a readily accessible
copy of the appellate record on or before December 30, 2016. See Kelly, 436 S.W.3d
at 315 (once a pro se motion for access to the record is filed, “the court of appeals has
the ultimate responsibility to make sure that, one way or another . . . the appellant is
granted access to the appellate record so he may file his response”); Escobar v. State,
134 S.W.3d 338, 339 (Tex. App.—Amarillo 2003, order) (holding that “appointed
counsel has the responsibility to procure a copy of the record for appellant to review in
preparation of his pro se response to the Anders brief”); Ramos v. State, No. 07-13-
00447-CR, 2014 Tex. App. LEXIS 14053, at *3-4 (Tex. App.—Amarillo Sept. 29, 2014,
order) (not designated for publication) (ordering appointed counsel to provide a paper
copy of the appellate record in an Anders appeal when appellant does not have access
to a computer). See also In re L.V., No. 07-15-00315-CV, 2015 Tex. App. LEXIS
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11607, at *5-6 (Tex. App.—Amarillo Nov. 9, 2016, order) (requiring appointed counsel in
a termination Anders appeal to provide appellant with a readily accessible copy of the
appellate record). Compare with Emmitt v. State, No. 07-15-00119-CR, 2015 Tex. App.
LEXIS 7167, at *1 (Tex. App.—Amarillo July 10, 2015, order) (not designated for
publication) (ordering the clerk of the trial court to deliver to appellant a paper copy of
the appellate record in accordance with unopposed pro se motion for access in an
appeal transferred from the Second Court of Appeals).
Because Appellant is indigent, any cost associated with providing an accessible
appellate record should be submitted to the trial court for payment. Counsel is further
directed to certify to this court, in writing, on or before that date, that she has complied
with this order. Appellant’s pro se response, should he desire to file one, is due on or
before January 30, 2017.
It is so ordered.
Per Curiam
Do not publish.
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