Darrell Mosqueda v. State
04-16-00135-CR
| Tex. App. | Oct 11, 2016Background
- Mosqueda appeals from a Tex. no. 04-16-00135-CR; Anders brief filed by counsel with motion to withdraw under Anders v. California; the brief did not include proof of Kelly v. State compliance; the State is not the movant in the Anders posture; the court required compliance verification by counsel; the court warned of abatement, abandonment hearing, and potential contempt; duties of counsel may continue after withdrawal until relief is granted.
- Counsel failed to provide proof that Kelly requirements were met, including notifying Mosqueda, advising on record access, and providing a motion form for requesting the appellate record.
- The court ordered Pat Montgomery to file by October 14, 2016 proof of compliance with Kelly and reminded counsel of ongoing duties after filing the withdrawal motion.
- The court indicated the case would be abated and remanded for an abandonment hearing and warned that counsel could be held in contempt for noncompliance.
- The court cited Kelley, Meza, Owens, and Schulman to support procedures for Anders briefs, client notification, and continued representation during withdrawal.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Compliance with Kelly requirements | Mosqueda's counsel did not prove compliance | Not stated; court assesses compliance | Yes: court requires proof of compliance by counsel |
| Remedy for noncompliance | Abatement and abandonment hearing appropriate | Not stated | Abate and remand for abandonment hearing; possible contempt |
| Ongoing duties of counsel after withdrawal | Counsel must continue to act to protect client interests | Not stated | Counsel must continue duties until relief is granted |
| Effect of Anders brief on record access | Appellant should have access to record | Not stated | Court requires compliance with Kelly to facilitate access |
Key Cases Cited
- Kelly v. State, 436 S.W.3d 313 (Tex. Crim. App. 2014) (requires letters notifying client and facilitating record access in Anders briefing)
- Ex parte Owens, 206 S.W.3d 670-74 (Tex. Crim. App. 2006) (discusses duties when appointed counsel files Anders brief)
- Meza v. State, 206 S.W.3d 684 (Tex. Crim. App. 2006) (pertains to correct notice and procedures in Anders situations)
- Schulman v. State, 252 S.W.3d 403 (Tex. Crim. App. 2008) (counsels’ continuing duties after filing motion to withdraw)