C OURT OF A PPEALS FOR THE F IRST D ISTRICT OF T EXAS AT H OUSTON

O RDER

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

Appellate case numbers: 01

- 18

- 00033

- CR & 01

- 18

- 0003 4

- 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 , 201 8

, concluding that the above

- referenced related appeal s are frivolous. See Anders v. California , 386 U.S. 738, 74 4, 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 mu st 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, a lthough c ounsel attached a certificate of counsel to h is Anders brief

, c oun sel has not filed a separate notice o f 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 h is client of the motion to withdraw and the accompanying Anders brief, providing h im with a copy of each, (2) inform h im of h is right to file a pro se response and of h is right to review the record preparatory to filing that response, [] (3) inform h im of h i s pro se right to seek discretionary review should the court of appeals declare h is appeal frivolous,” and (4) “notify h is client that, should he wish to exercise h is 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 31 9

– 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 T EX

. R. A PP

. 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 h im of h is various pro se rights, and (3) supplied h im 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 t o 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 T EX

. R. A PP

. 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 2 6 , 2018