COURT OF APPEALS FOR THE

FIRST DISTRICT OF TEXAS AT HOUSTON

ORDER

Appellate case name: Scott Richard Pendergraft v. The State of Texas

Appellate case numbers: 01-18-00033-CR & 01-18-00034-CR

Trial court case numbers: 1512987 & 1512988

Trial court: 262nd District Court of Harris County

Appellant’s court-appointed counsel filed a brief on July 19, 2018, concluding that 

the above-referenced related appeals are frivolous. See Anders v. California, 386 U.S. 738, 

744, 87 S. Ct. 1396, 1400 (1967). However, counsel has not filed a motion to withdraw 

from representation with the Clerk of this Court. If appointed counsel believes that an 

appeal is frivolous, counsel must request permission to withdraw. See Anders, 386 U.S. at 

744. An Anders brief must accompany a motion to withdraw, 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, although counsel attached a certificate of counsel to his Anders brief,

counsel has not filed a separate notice of compliance, or otherwise certified that he has 

written a letter to appellant, 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, Terrence Gaiser, to file a 

motion to withdraw and send a letter to the appellant in accordance with Kelly. See TEX.

R. APP. P. 6.5, 9; Kelly, 436 S.W.3d at 319–20. We further order appellant’s appointed 

counsel to notify us in writing “that he has (1) informed the appellant of the motion to 

withdraw and attendant Anders brief, (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.” Kelly, 436 S.W.3d at 320. Because appellant 

already filed a pro se motion for access to the appellate record on July 23, 2018, 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 letter to his client and shall file the required motion 

to withdraw and Kelly notice with the Clerk of this Court within 10 days of the date of 

this order. See TEX. R. APP. P. 6.5, 9; Schulman, 252 S.W.3d at 410, 412.

It is so ORDERED.

Judge’s signature: /s/ Evelyn V. Keyes

 

Date: July 26, 2018