David Michael Espiritu v. State ( 2019 )

Fourth Court of Appeals
San Antonio, Texas
December 16, 2019
No. 04-19-00549-CR
David Michael ESPIRITU,
Appellant
v.
The STATE of Texas,
Appellee
From the 437th Judicial District Court, Bexar County, Texas
Trial Court No. 2012CR9243
Honorable Lori I. Valenzuela, Judge Presiding
ORDER
Attorney Debra L. Parker is the court-appointed appellate counsel for Appellant David
Michael Espiritu. On December 9, 2019, counsel filed an Anders brief. See Anders v.
California, 386 U.S. 738, 744 (1967); see also Kelly v. State, 436 S.W.3d 313, 319–20 (Tex.
Crim. App. 2014). The next day, counsel filed a motion to withdraw.
On December 11, 2019, we advised counsel that the December 9, 2019 Anders brief and
the December 10, 2019 motion to withdraw did not comply with the requisite procedures. See
Kelly, 436 S.W.3d at 319–20. We identified the defects in the documents and ordered counsel to
file an amended brief and correcting documents.
The same day, counsel refiled the original brief and motion to withdraw. Counsel added
a copy of counsel’s December 11, 2019 letter to Appellant that corrected all but one of the
defects in counsel’s previous documents. Counsel advised Appellant that he may request a free
copy of the appellate record, but counsel did not provide Appellant with a completed pro se
motion, addressed to this court, for a free copy of the record. See Kelly v. State, 436 S.W.3d at
319–20 (requiring counsel to “include in [counsel’s] letter to the appellant a form motion . . .
lacking only the appellant’s signature and the date”).
Our December 11, 2019 order is SATISFIED IN PART pending counsel’s providing
written proof to this court that counsel has sent Appellant a form motion as required. See Kelly,
436 S.W.3d at 319–20.
We ORDER Debra L. Parker to provide written proof to this court within TEN DAYS of
the date of this order that counsel has sent Appellant a motion for a free copy of the appellate
record as required by Kelly. See id.
If Appellant wishes to file a pro se brief, he must file it with this court within THIRTY
DAYS after counsel sends Appellant the motion for a free copy of the appellate record.
Although the State filed its brief waiver based on Appellant’s initial brief, which we
struck, because Appellant’s December 11, 2019 brief is identical to the original brief, we will
accept the State’s brief waiver as effective unless the State notifies this court to the contrary
within TEN DAYS of the date of this order.
_________________________________
Patricia O. Alvarez, Justice
IN WITNESS WHEREOF, I have hereunto set my hand and affixed the seal of the said
court on this 16th day of December, 2019.
___________________________________
MICHAEL A. CRUZ,
Clerk of Court