Carlos Javier Chavez v. State

Fourth Court of Appeals
San Antonio, Texas
October 17, 2018
No. 04-18-00357-CR & 04-18-00358-CR
Carlos Javier CHAVEZ,
Appellant
v.
The STATE of Texas,
Appellee
From the County Court at Law No. 6, Bexar County, Texas
Trial Court No. 551667 & 551669
Honorable Wayne A. Christian, Judge Presiding
ORDER
On October 8, 2018, appellant’s appointed counsel, Suzanne Kramer, filed a purported
Anders brief. However, when she filed the brief, Ms. Kramer filed neither a motion to withdraw
nor proof pursuant to Kelly v. State that she had provided appellant with a form motion to allow
him to request the record from this court. See Kelly v. State, 436 S.W.3d 313 (Tex. Crim. App.
2014). Ms. Kramer subsequently filed her motion to withdraw, but did not file proof that she had
provided appellant with a form motion as mandated by Kelly.
After telephone calls from our clerk’s office, Ms. Kramer, on October 10, 2018, filed a
document entitled “Motion for a Free Reporter’s Record on Appeal.” In that motion, she asks
that this court “grant this Motion … should [appellant] decided [sic] to proceed pro se.”
Appellant is indigent and he is entitled to a free record should he request one. Thus, we DENY
AS MOOT the motion for a free record. This motion for a free reporter’s record filed by Ms.
Kramer is not the motion mandated by the court’s decision in Kelly v. State. In Kelly, the court
of criminal appeals specifically stated that in Anders cases, in addition to appointed counsel’s
other duties, counsel must provide appellant with a form motion for purposes of requesting the
record and inform 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.” Id. at 319–20.
Counsel must must “notify the court of appeals, in writing” that she has informed the appellant
of the motion to withdraw and the Anders brief, provided the appellant with copies of the
documents, notified him of his pro se rights, and that she has supplied the appellant with a form
motion for pro se access to the appellate record and the court’s mailing address.
Although Ms. Kramer filed her Anders brief, a motion to withdraw, and a letter
establishing that she provided appellant with copies of same and advised appellant of his right to
review the record and file a pro se brief, she has failed to provide proof to this court that she has
supplied appellant with a form motion to allow appellant pro se access to the appellate record,
advised him of this court’s mailing address, and advised that he should file said motion, should
he desire to file his own brief, within ten days of receiving it. Thus, Ms. Kramer has failed to
comply with her duties pursuant to Anders as set out by the court of criminal appeals in Kelly.
See id.
Accordingly, we ORDER Suzanne Kramer, to file in this court on or before 12:00 p.m.
on Friday, October 19, 2018, proof that: (1) she has supplied appellant with a form motion
for pro se access to the appellate record; (2) advised appellant of this court’s mailing
address; and (3) advised appellant that should he desire access to the record for purposes
of filing a pro se brief, he must sign, date, and send the motion for access to the record to
this court within ten days of the date of her letter. If Ms. Kramer fails to timely comply
with this court’s order by the date ordered, she may be ordered to appear and show cause
why she should not be held in civil or criminal contempt of this court or otherwise
sanctioned.
We order the clerk of this court to serve this order on Suzanne Kramer by first class
United States mail and by certified mail, return receipt requested, with delivery restricted to
addressee only, or give other personal notice of this order with proof of delivery. We further
order the clerk of this court to serve a copy of this order on Suzanne Kramer by facsimile and by
email, and to call and advise her of this court’s order and its deadline. The order shall also be
served on counsel for the State.
_________________________________
Marialyn Barnard, Justice
IN WITNESS WHEREOF, I have hereunto set my hand and affixed the seal of the said
court on this 17th day of October, 2018.
___________________________________
KEITH E. HOTTLE,
Clerk of Court