Texas Stamp

New Service Rule Applicable to the State Prosecuting Attorney Per Misc. Docket No. 19-012

Texas Rules of Appellate Procedure Rules 80-80.1, effective December 1, 2019
The State Prosecuting Attorney must be served on every petition for discretionary review or brief filed by any party or amicus curiae in the Court of Criminal Appeals, including replies, responses, amendments, and supplements.

PENDERGRAFT, JAMES RAY

PD-0474-19 10/23/2019

1. “Based on these facts, does the Twelfth District Court of Appeals’ decision conflict with Kelly v. State, for granting Counsel’s motion to withdraw and declaring the appeal frivolous, without first satisfying Petitioner’s express request to gain access to the appellate record in order to meaningfully respond to the Ander’s [sic] Brief? Kelly, 436 S.W.Sd 313 (Tex. Crim. App. 2014).”

2. “Based on these facts, was Petitioner denied his due process and equal protection rights as declared by Anders v. California, for withholding the Appellate Record from Petitioner, unless he could provide the court with the monetary [sic] expense of $688.00? Anders, 386 U.S. 738, 87 S.Ct. 1396.”

3. “Once Counsel files a motion to withdraw and an Ander’s [sic] Brief, should it be Counsel’s responsility [sic] to provide access of the appellate record to the Petitoiner [sic], in order to meaningfully respond to the Ander’s [sic] Brief?”

Pendergraft’s appellate attorney filed an Anders brief and a motion to withdraw. According to the court of appeals, counsel gave Pendergraft a copy of the brief, notified him he filed a motion to withdraw, informed him of his right to file a pro se response, and took “concrete measures” to facilitate Pendergraft’s review of the record. The court of appeals concluded that there were no arguable issues for appeal; it affirmed the trial court’s judgment and granted counsel’s motion.

Pendergraft contends he was denied a free copy of the trial record and therefore was unable to file a meaningful pro se response.  He explains that initially the court of appeals told him it would cost $688.  Later, he was bench-warranted to the county and given access to the record. However, because he was unable to read and write, he was transferred back to TDCJ.  The trial record was then sent to him on a CD twice. But he does not know what happened to them because prisoners are not allowed to have CDs.  He requested a paper copy but the court denied the motion for failing to comply with service rules. He also claims he did not receive counsel’s Anders brief and did not receive a copy after requesting one from the court.  Finally, he argues that counsel had a duty to give him access to the record.  Counsel should have read it to him or requested someone else be assigned to do so, or counsel should have made him a copy.

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