Fourth Court of Appeals
San Antonio, Texas
October 28, 2015
No. 04-15-00333-CR
Mario Ismael GUTIERREZ,
Appellant
v.
The STATE of Texas,
Appellee
From the 227th Judicial District Court, Bexar County, Texas
Trial Court No. 2013CR4433
Honorable Philip A. Kazen, Jr., Judge Presiding
ORDER
Appellant Mario Ismael Gutierrez’s court-appointed attorney has filed a brief and motion
to withdraw pursuant to Anders v. California, 386 U.S. 738 (1967), in which he asserts there are
no meritorious issues to raise on appeal. Counsel sent copies of the brief and motion to withdraw
to Gutierrez and explained his rights to review the record, file a pro se brief, and file a pro se
petition for discretionary review if this court determines the appeal is frivolous. See Kelly v.
State, 436 S.W.3d 313 (Tex. Crim. App. 2014). In addition, counsel provided appellant with a
copy of the appellate record. See id.
If appellant desires to file a pro se brief, we order that he do so on or before November
30, 2015..
The State has filed a notice waiving its right to file a brief in this case unless appellant
files a pro se brief. If appellant files a timely pro se brief, the State may file a responsive brief no
later than thirty days after appellant’s pro se brief is filed in this court.
We further order the motion to withdraw filed by appellant’s counsel is held in abeyance
pending further order of the court. See Penson v. Ohio, 488 U.S. 75, 80-82, 109 S. Ct. 346, 102
L. Ed.2d 300 (1988) (holding that a motion to withdraw should not be ruled on before appellate
court independently reviews the record to determine whether counsel’s evaluation that the appeal
is frivolous is sound); Schulman v. State, 252 S.W.3d 403, 410-11 (Tex. Crim. App. 2008)
(same); see also Kelly, 436 S.W.3d at 319 (appointed counsel’s duties of representation do not
cease when he files a motion to withdraw; counsel must continue to “act with competence,
commitment and dedication to the interest of the client” until the court of appeals grants the
motion). Accordingly, no new attorney will be appointed for appellant at this time.
We further order the clerk of this court to serve a copy of this order on appellant, his
counsel, the attorney for the State, and the clerk of the trial court.
_________________________________
Luz Elena D. Chapa, Justice
IN WITNESS WHEREOF, I have hereunto set my hand and affixed the seal of the said
court on this 28th day of October, 2015.
___________________________________
Keith E. Hottle
Clerk of Court