Lakeisha Scott v. State ( 2015 )

COURT OF APPEALS FOR THE
FIRST DISTRICT OF TEXAS AT HOUSTON
ORDER
Appellate case name: Lakeisha Scott v. The State of Texas
Appellate case number: 01-14-01031-CR
Trial court case number: 1387553
Trial court: 263rd Judicial District Court of Harris County
Appellant’s court-appointed counsel filed a brief concluding that the above-
referenced appeal is frivolous. See Anders v. California, 386 U.S. 738, 744, 87 S. Ct.
1396, 1400 (1967). Although counsel included a cover letter to appellant, dated May 7,
2015, stating that a motion to withdraw was enclosed, counsel has not, however, filed a
separate motion to withdraw from representation.
If appointed counsel believes that an appeal is frivolous, counsel must request
permission to withdraw. See id. An Anders brief must accompany a motion to withdraw
because 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, counsel has not filed a separate cover letter 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, Marcus J. Fleming, to file
with the Clerk of this Court a motion to withdraw that complies with Texas Rules of
Appellate Procedure 6.5 and 9, and file and mail an updated cover letter to appellant in
accordance with Kelly. See TEX. R. APP. P. 6.5, 9; Kelly, 436 S.W.3d at 319-20;
Schulman, 252 S.W.3d at 410, 412. We further order appellant’s appointed counsel to
notify this Court, in writing, “that he has (1) informed the appellant of the motion to
withdraw and attendant Anders brief, [and] (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 (and the mailing address for the court of
appeals), to be filed within ten days, so that he may timely effectuate that right, if he so
choose.” Kelly, 436 S.W.3d at 319. Because the Clerk of this Court will mail appellant a
form pro se motion for access to the appellate record after counsel files a motion to
withdraw, 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 updated letter to his client and shall file the
required motion to withdraw and notice with the Clerk of this Court within 10 days of
the date of this order.
It is so ORDERED.
Judge’s signature: /s/ Laura C. Higley
 Acting individually  Acting for the Court
Date: May 14, 2015