NO. 07-04-0435-CV
NO. 07-04-0436-CV
NO. 07-04-0437-CV
IN THE COURT OF APPEALS
FOR THE SEVENTH DISTRICT OF TEXAS
AT AMARILLO
PANEL A
SEPTEMBER 8, 2004
______________________________
IN RE ASHLEY GUTIERREZ BY AND THROUGH HER NEXT FRIEND MICHELLE CORDOVA, RELATOR
IN RE JOSEPH ALARCON GONZALEZ, RELATOR
_________________________________
Before JOHNSON, C.J., and REAVIS and CAMPBELL, JJ.
MEMORANDUM OPINION ON PETITIONS FOR WRIT OF MANDAMUS
AND PETITIONS FOR WRIT OF PROHIBITION
By these original proceedings, Relators Ashley Gutierrez, by and through her next friend Michelle Cordova, and Joseph Alarcon Gonzalez, natural parents of Ashley Gutierrez, seek a writ of mandamus denying "the standing of " Jeffrey Donald Gurney and Alicia Munoz Gurney to pursue "their second cause of action" relating to cause number 54,925-B, District Court, Randall County, Texas. They also request that we issue a writ of prohibition that the Honorable John Board, Judge of the 181st District Court, and the Honorable James Anderson, Judge of the County Court at Law of Randall County, not proceed with hearings in cause numbers 51,715-B and 54,925-B until a ruling on the petitions for writ of mandamus.
A writ of mandamus will only issue to correct a clear abuse of discretion or violation of a duty imposed by law when there is no adequate remedy at law by appeal. Walker v, Packer, 827 S.W.2d 833, 837-38 (Tex. 1992). Moreover, an appeal, not an original proceeding, is the appropriate method to remedy a trial court's failure to give preclusive effect to a final judgment and thus appellate courts have no authority to issue writs of prohibition to protect unappealed judgments. See Holloway v. Fifth Court of Appeals, 767 S.W.2d 680, 683 (Tex. 1989). Accordingly, the petitions for writ of mandamus and writ of prohibition are denied.
Per Curiam
rial court has the duty to provide an indigent defendant with an adequate record on appeal. Newman v. State, 937 S.W.2d 1, 3 (Tex.Cr.App. 1996) (en banc), citing Abdnor v. State, 712 S.W.2d 136, 139 (Tex.Cr.App. 1986) (en banc). However, we have found no decision addressing on whom the responsibility falls of ensuring that an indigent appellant obtains access to the record for review for possible preparation of a pro se response in an Anders appeal. Our sister courts in San Antonio and Waco have suggested in footnotes that it is counsel's responsibility to explain to an appellant the details of the procedure for obtaining access to the record. See Bruns v. State, 924 S.W.2d 176,180 n.1 (Tex.App.-San Antonio 1996, no pet.); Evans v. State, 933 S.W.2d 334, 335 n.1 (Tex.App.-Waco 1996, no pet.); Johnson v. State, 885 S.W.2d 641, 647 n.2 (Tex.App.--Waco 1994, pet. ref'd).
The Texas Rules of Appellate Procedure provide that in criminal cases the trial court clerk and the court reporter must prepare the clerk's record and reporter's record in duplicate. See Tex. R. App. P. 34.5(g) & 34.6(h). The rules also direct that the trial court clerk retain a copy of the clerk's record and that the court reporter file a copy of the reporter's record with the trial court clerk for use by the parties with permission of the trial court.
The decision to grant counsel's motion to withdraw from an Anders appeal may not be made until after an appellate court makes an independent review of the record to determine whether meritorious issues exist. Penson, 488 U.S. at 80. An appellate court should not proceed to address the merits of the appeal until after the pro se response is received or a reasonable opportunity for filing one has lapsed. Wilson v. State, 955 S.W.2d 693, 696 (Tex.App.-Waco 1997, no pet.). Thus, until an appellate court determines that an appeal is frivolous and grants counsel's motion to withdraw, counsel remains the attorney of record and is bound by the Rules of Professional Conduct to act zealously in his client's behalf and to promptly comply with reasonable requests for information. See Tex. Disciplinary R. Prof'l Conduct 1.01, comment 6, and 1.03, reprinted in Tex. Gov't Code Ann. tit. 2, subtit. G app. A (Vernon 1998) (Tex. State Bar R. art. X, § 9). Accordingly, we hold that appointed counsel has the responsibility to procure a copy of the record for appellant to review in preparation of his pro se response to the Anders brief. Pursuant to Rules 34.5(g) and 34.6(h) of the Texas Rules of Appellate Procedure, appointed counsel should immediately request permission from the trial court to obtain the duplicate clerk's and reporter's records filed with the trial court clerk for use by appellant in preparation of his response. Appellant's pro se motion is overruled.
It is so ordered.
Per Curiam
Publish.
1. Anders v. California, 386 U.S. 738, 87 S. Ct. 1396, 18 L. Ed. 2d 493 (1967).