                              COURT OF APPEALS FOR THE
                         FIRST DISTRICT OF TEXAS AT HOUSTON

                                            ORDER

Appellate case name:         Melvin Lee Hightower v. The State of Texas

Appellate case number:       01-17-00714-CR

Trial court case number:     15-CR-0040

Trial court:                 212th District Court of Galveston County

       Appellant’s court-appointed counsel prematurely submitted a motion to withdraw
and appellate brief on October 23, 2017, before the clerk’s record had been filed,
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). On October 27, 2017, the clerk’s record was filed in this Court,
completing the appellate records. See TEX. R. APP. P. 38.6(a)(1). Thus, the Clerk of this
Court is directed to mark appellant’s counsel’s motion to withdraw and Anders brief as
filed on October 27, 2017, and to mail the form motion for pro se access to the appellate
record to the pro se appellant. See id. 27.2.


        In addition, although counsel’s motion states that he forwarded a copy of the
motion and Anders brief to the appellant, and informed appellant of his right to file a
response and seek discretionary review with the Texas Court of Criminal Appeals,
counsel has not filed a separate cover letter or notice in accordance with Kelly v. State,
436 S.W.3d 313 (Tex. Crim. App. 2014). Under Kelly, appointed counsel must “(1)
notify his 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 his 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, Thomas A. Martin, to mail
an updated cover letter to appellant, as noted above, in accordance with Kelly. See Kelly,
436 S.W.3d at 319-20. We further order appellant’s appointed counsel to file a notice
with the Clerk of this Court “that he has (1) informed the appellant of the motion to
withdraw and attendant Anders brief, [and] (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 (and the mailing address for the court of
appeals), to be filed within ten days, so that he may timely effectuate that right, if he so
choose.” Kelly, 436 S.W.3d at 319. Because the Clerk of this Court will mail appellant a
form pro se motion for access to the appellate record, which includes an extension
request, counsel does not need to send another form motion to his client, but should
notify his client as provided above.


       Counsel shall file the required Kelly notice with the Clerk of this Court and send
the required updated letter to his client within 10 days of the date of this order. See
Kelly, 436 S.W.3d at 319-20.


       It is so ORDERED.


Judge’s signature: /s/ Evelyn V. Keyes
                     Acting individually      Acting for the Court

Date: November 14, 2017
