Jon Michael Miranda v. State

COURT OF APPEALS FOR THE FIRST DISTRICT OF TEXAS AT HOUSTON

ORDER

Appellate case name: Jon Michael Miranda v. The State of Texas Appellate case number: 01-14-00590-CR Trial court case number: 13CR0598 Trial court: 10th Judicial District Court of Galveston County

On October 22, 2014, appellant’s counsel, Calvin D. Parks, filed a motion to withdraw 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); In re Schulman, 252 S.W.3d 403, 406 (Tex. Crim. App. 2008). However, we find the motion and brief filed on appellant’s behalf deficient. See TEX. R. APP. P. 9.4(k).

This is an appeal from a guilty plea, and the record on appeal includes a 95-page clerk’s record and a 4-volume reporter’s record. Nevertheless, while the brief contains a few page references to the reporter’s record, it provides no page references or citations to the clerk’s record and further fails to include Issues Presented, Summary of the Argument, and Argument sections with separate headings and proper record references. See TEX. R. APP. P. 38.1(d), (f)-(i). And, although counsel presents a minimal discussion of the evidence and a few potential issues, he does not present any argument or citations to authority to support his conclusion that these issues will not support an appeal. See High v. State, 573 S.W.2d 807, 812-13 (Tex. Crim. App. 1978); Williams v. State, 976 S.W.2d 871, 873 (Tex. App.—Corpus Christi 1998, order); Jeffrey v. State, 903 S.W.2d 776, 779 (Tex. App.—Dallas 1995, no pet.).

By failing to provide a professional evaluation of the record, counsel’s brief provides no aid to appellant or to this Court, and it fails to meet the requirements of Anders. See McCoy v. Court of Appeals of Wisc., Dist. 1, 486 U.S. 429, 442, 108 S. Ct. 1895, 1903–04 (1988) (requiring appellate court, in addition to determining whether

counsel correctly determined that appeal is frivolous, to “satisfy itself that the attorney has provided the client with a diligent and thorough search of the record for any arguable claim that might support the client’s appeal); Anders, 386 U.S. at 744–45, 87 S. Ct. at 1400 (requiring counsel to file brief that assists client by evaluating all potential grounds for appeal and aids Court in evaluating record); High, 573 S.W.2d at 812 (requiring “brief of counsel to contain a professional evaluation of the record demonstrating why, in effect, there are no arguable grounds to be advanced”).

Accordingly, we strike the defective brief and order counsel to file a new brief, correcting the deficiencies noted above in the stricken brief and presenting a full discussion of the evidence presented in the trial court. See TEX. R. APP. P. 9.4(k); Stafford v. State, 813 S.W.2d 503, 510 (Tex. Crim. App. 1991); Banks v. State, 341 S.W.3d 428, 432 (Tex. App.—Houston [1st Dist.] 2009, order), disp. on merits, No. 01- 08-00286-CR, 2010 WL 1053218 (Tex. App.—Houston [1st Dist.] Mar. 11, 2010, no pet.); see, e.g., Anders Guidelines, available at http://www.txcourts.gov/14thcoa.aspx (last visited Oct. 29, 2014).

In addition, counsel’s motion to withdraw is stricken for failure to comply with Texas Rule of Appellate Procedure 6.5(a)(3) and (b) by not including a statement or certificate of service of delivery on the pro se appellant. Finally, although counsel included a cover letter with his brief, it was not filed in accordance with Kelly v. State, 436 S.W.3d 313, 319-20 (Tex. Crim. App. 2014), and should provide a form motion for pro se access to the appellate record, such as the motion attached to this order, to the appellant. Accordingly, appellant’s counsel’s amended brief, motion to withdraw, and cover letter with form motion are ordered to be filed and served on appellant no later than 30 days from the date of this order.

It is so ORDERED.

Judge’s signature: /s/ Laura C. Higley 

Panel consists of ____________________________________________ Date: October 30, 2014

Return to: First Court of Appeals 301 Fannin Street Houston, Texas 77002

No. 01-___-__________-CR _________________ § COURT OF APPEALS v. § 1ST DISTRICT The State of Texas § HOUSTON, TEXAS

Pro se Motion for Access to Appellate Record To the Honorable Justices of Said Court: Appellant’s appointed counsel has filed a brief in the above styled and numbered cause pursuant to Anders v. California, 386 U.S. 738 (1967). Appellant now moves this Court to provide him with a copy of the appellate record including the clerk’s record and the court reporter’s record for use in preparing his pro se response to counsel’s brief. Appellant requests an extension of time of 30 days from the granting of this motion to file a pro se response to counsel’s Anders brief. Respectfully submitted,

_______________________ Pro se Appellant _____________ Unit,TDCJ # __________ ____________, Texas _______

Certificate of Service This is to certify that on ____________, a true and correct copy of the above and foregoing document was served by mail on the _______ County District Attorney’s Office at ___________, __________, Texas ____________. _______________________ Pro se Appellant