COURT OF APPEALS FOR THE

FIRST DISTRICT OF TEXAS AT HOUSTON

ORDER

Appellate case name: Johnny Lee Childress, Jr. v. The State of Texas

Appellate case number: 01-16-00416-CR

Trial court case number: 15-DCR-070013A

Trial court: 268th District Court of Fort Bend County

Appellant’s court-appointed counsel has filed an appellate brief concluding that 

the above-referenced appeal is frivolous. See Anders v. California, 386 U.S. 738, 744, 87 

S. Ct. 1396, 1400 (1967). 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).

Also, while counsel’s Anders brief cover page has the correct appellate cause 

number and trial court, it lists a different trial court cause number, 15-DCR-070013, from 

the one listed above, 15-DCR-070013A, taken from the notice of appeal. See TEX. R.

APP. P. 9.4(g), (k). On June 6, 2016, the clerk’s record for trial court cause number, 15-

DCR-070013, was filed in this Court including, among other documents, the trial court’s 

certification of the right of appeal, noting that appellant had no right of appeal and that he 

had waived his right of appeal. See TEX. R. APP. P. 25.2(a)(2), (d).

On August 2, 2016, appellant’s counsel filed a motion to extend time to file 

appellant’s brief in this Court and noted a jurisdictional issue for trial court cause number 

15-DCR-070013A, which had been dismissed as a result of appellant’s plea-bargain in 

15-DCR-070013, but did not address any jurisdictional issues for trial court cause 

number 15-DCR-070013. Although counsel was appointed by the trial court as 

appellant’s counsel for both trial court cause numbers 15-DCR-070013 and 15-DCR070013A, a notice of appeal was timely filed only in 15-DCR-070013A.
2

In addition, although counsel’s brief states that he mailed a copy of the Anders

brief to the appellant, counsel has not filed a separate cover letter or notice in accordance 

with Kelly v. State, 436 S.W.3d 313 (Tex. Crim. App. 2014). Under Kelly, appointed 

counsel must “(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, Michael C. Diaz, to file 

with the Clerk of this Court a motion to withdraw that complies with Texas Rules of 

Appellate Procedure 6.5 and 9.4, and an amended Anders brief correcting the trial court 

cause number to 15-DCR-070013A and addressing whether we have jurisdiction, and to 

mail a cover letter to appellant in accordance with Kelly. See TEX. R. APP. P. 6.5, 9.4(g); 

Kelly, 436 S.W.3d at 319-20. We further order appellant’s appointed counsel to file a 

notice with the Clerk of this Court “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 has

already mailed appellant a form pro se motion for access to the appellate record on 

September 6, 2016, counsel does not need to send the form motion to his client, but 

should notify his client as provided above.

Counsel shall file the motion to withdraw and amended Anders brief and the 

required Kelly notice with the Clerk of this Court and send the required updated letter to 

his client, with the amended Anders brief, within 10 days of the date of this order or 

this Court may strike the brief. See TEX. R. APP. P. 9.4(k).

It is so ORDERED.

Judge’s signature: /s/ Laura Carter Higley

  Acting individually 

Date: September 15, 2016