Rosalinda Huereca Pena v. State

Fourth Court of Appeals
San Antonio, Texas
December 10, 2018
No. 04-18-00558-CR
Rosalinda Huereca PENA,
Appellant
v.
The STATE of Texas,
Appellee
From the County Court at Law No. 6, Bexar County, Texas
Trial Court No. 455468
Honorable Wayne A. Christian, Judge Presiding
ORDER TO CORRECT BRIEFING DEFECTS
On December 6, 2018, counsel for the appellant filed a brief pursuant to Anders v.
California, 386 U.S. 738 (1967), in which she asserts there are no meritorious issues to raise on
appeal. However, counsel did not file a motion to withdraw and counsel’s letter to appellant is
deficient.
Appointed counsel who files an Anders brief is required to simultaneously file a motion
to withdraw. See Schulman v. State, 252 S.W.3d 403 Tex. Crim. App. 2008); Nichols v. State,
954 S.W.2d 83, 85 (Tex. App.—San Antonio 1997, no pet.).
When counsel files an Anders brief, she is required to include as an exhibit a copy of the
letter sent to her client. The letter must: (1) notify appellant that counsel has filed an Anders
brief and motion to withdraw and enclose copies of the documents, (2) inform appellant of her
right to review the appellate record and file a pro se brief, (3) inform appellant of her right to file
a pro se petition for discretionary review should the court of appeals determine the appeal is
frivolous, and (4) “take concrete measures to initiate and facilitate the process of actuating
[appellant’s] right to review the appellate record, if that is what [appellant] wishes.” Kelly v.
State, 436 S.W.3d 313, 319 (Tex. Crim. App. 2014); Ex parte Owens, 206 S.W.3d 670674 n. 28
(Tex. Crim. App. 2006); Meza v. State, 206 S.W.3d 684 (Tex. Crim. App. 2006). With respect to
the last requirement, counsel may either send a copy of the appellate record to her client or
advise her client that if she wishes to review the appellate record, she must file a motion in this
court within ten days of counsel’s letter, requesting access to the record. See Kelly, 436 S.W.3d
at 319-20. Counsel must include with her letter a form motion for this purpose, advise her client
to sign and date the motion and mail it to this court within ten days, and supply her client with
this court’s mailing address. Id. at 320.
Counsel’s letter to her client complies with the first two requirements of Kelly. However,
it does not inform Pena of her right to file a pro se petition for discretionary review should this
court determine the appeal is frivolous. Counsel’s letter also does not provide Pena this court’s
mailing address so that she can file a motion for access to the appellate record.
We therefore order appellant’s appointed counsel, Suzanne Kramer, to file by
December 12, 2018, a motion to withdraw and a copy of a letter that complies with the
requirements of Kelly.
Counsel is reminded that her duties of representation do not cease when she files a
motion to withdraw; counsel must continue to ‘act with competence, commitment and dedication
to the interest of the client’ until the court of appeals grants the motion. Schulman v. State, 252
S.W.3d 403, 410-11 (Tex. Crim. App. 2008) (same); see also Kelly, 436 S.W.3d at 319.
_________________________________
Luz Elena D. Chapa, Justice
IN WITNESS WHEREOF, I have hereunto set my hand and affixed the seal of the said
court on this 10th day of December, 2018.
___________________________________
Keith E. Hottle
Clerk of Court