David Michael Espiritu v. State ( 2019 )

Fourth Court of Appeals
San Antonio, Texas
December 11, 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.
The Anders brief and the motion to withdraw do not comply with the requisite
procedures. See Kelly, 436 S.W.3d at 319–20. The following are defects in the documents.
• Appellant’s brief fails to do the following:
o advise Appellant that counsel has filed a motion to withdraw;
o advise Appellant that an Anders brief has been filed and provide Appellant
with a copy of the brief;
o advise Appellant of the right to file a pro se brief, and provide the associated
deadlines; and
o advise Appellant of the right to file a petition for discretionary review with the
Texas Court of Criminal Appeals if this court determines the appeal is
frivolous.
• Counsel’s motion to withdraw is applicable to a post-judgment, pre-notice of appeal
time period, not a post-Anders brief stage, and it fails to confirm the following:
o that Appellant was sent a copy of the motion to withdraw,
o that Appellant was sent a copy of the Anders brief, and
o that Appellant was sent a completed pro se motion, addressed to this court, for
a free copy of the record and which lacks only Appellant’s signature and date.
This court may order a party to amend, supplement, or redraw a brief if it flagrantly
violates Rule 38 or the requisite procedures for an Anders brief. See TEX. R. APP. P. 38.9(a); see
also Kelly, 436 S.W.3d at 319–20; High v. State, 573 S.W.2d 807, 813 (Tex. Crim. App. [Panel
Op.] 1978).
Therefore, we STRIKE Appellant’s Anders brief and ORDER court-appointed counsel
Debra L. Parker to file an amended brief and copies of the required documents within TEN
DAYS of the date of this order. The amended brief and documents must correct all the
violations listed above and fully comply with the applicable rules and procedures. See, e.g.,
TEX. R. APP. P. 9.4, 9.5, 38.1; Kelly, 436 S.W.3d at 319–20; High, 573 S.W.2d at 813.
If counsel timely files a brief that complies with this order, the State’s brief or brief
waiver letter will be due thirty days after Appellant’s amended Anders brief is filed. See TEX. R.
APP. P. 38.6(b).
_________________________________
Patricia O. Alvarez, Justice
IN WITNESS WHEREOF, I have hereunto set my hand and affixed the seal of the said
court on this 11th day of December, 2019.
___________________________________
MICHAEL A. CRUZ,
Clerk of Court