COURT OF APPEALS FOR THE
FIRST DISTRICT OF TEXAS AT HOUSTON
ORDER
Appellate case name: Justin Berard v. The State of Texas
Appellate case number: 01-16-00662-CR
Trial court case number: 1491118
Trial court: 184th District Court of Harris County
Appellant’s court-appointed counsel filed a motion to withdraw as counsel with a
brief concluding that the above-referenced appeal is frivolous. See Anders v. California,
386 U.S. 738, 744, 87 S. Ct. 1396, 1400 (1967). However, counsel has not filed a copy
of the letter she wrote, or otherwise certified that she has written a letter, in accordance
with Kelly v. State, 436 S.W.3d 313 (Tex. Crim. App. 2014), “to (1) notify h[er] 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 h[er] 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, Cheri Duncan, to send a
letter to the appellant in accordance with Kelly. 436 S.W.3d at 319–20. We further
order appellant’s appointed counsel to notify us in writing “that [s]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.” Id. at 320.
Although counsel’s motion to withdraw states that counsel’s appellate brief
extension request was then still pending and that there were no other deadlines in this
case on February 15, 2017, since then, this Court’s Order, issued on February 16, 2017,
granted counsel’s extension. Also, the Clerk of this Court issued a notice, dated February
15, 2017, informing appellant that his deadline to file a pro se Anders brief response or
extension request, if any, is March 17, 2017. Because the Clerk of this Court already
mailed appellant a form pro se motion for access to the appellate record after counsel
filed her motion to withdraw and Anders brief on February 15, 2017, counsel does not
need to send the form motion to her client, but should notify her client as provided above
of the Kelly notice requirements and appellant’s March 17, 2017 deadline.
Counsel shall send the required Kelly letter to her client and shall file the required
notice with the Clerk of this Court within 10 days of the date of this order.
It is so ORDERED.
Judge’s signature: /s/ Laura Carter Higley
Acting individually
Date: February 23, 2017