Opinion
No. 04-06-00319-CV
Delivered and Filed: November 1, 2006.
Appeal from the 225th Judicial District Court, Bexar County, Texas, Trial Court No. 2004-PA-01788, Honorable Martha Tanner, Judge Presiding.
Motion to Withdraw Granted; Affirmed.
Sitting: Sarah B. DUNCAN, Justice, Karen ANGELINI, Justice, Rebecca SIMMONS, Justice.
MEMORANDUM OPINION
On March 22, 2006, the trial court terminated Cristobal Tristan's parental rights to his three children, R.M.G., C.T., and A.L.T. Tristan timely filed a notice of appeal and a motion for new trial and statement of appellate points. See Tex. Fam. Code Ann. § 263.405(a), (b) (Vernon Supp. 2006). As required, the trial court held a hearing on the motion for new trial and statement of appellate points, denying the motion for new trial and finding Tristan's appellate points frivolous. See Id. § 263.405(d). Tristan's court-appointed appellate counsel has moved to withdraw and filed a brief in which he raises no arguable points of error and concludes this appeal is frivolous and without merit. The brief meets the requirements of Anders v. California, 386 U.S. 738, 87 S. Ct. 1396, 18 L. Ed. 2d 493 (1967). See In re R.R., No. 04-03-00096-CV, 2003 WL 21157944, at *4 (Tex.App.-San Antonio May 21, 2003, order) (applying Anders procedure to appeals from termination of parental rights), disp. on merits, 2003 WL 22080522 (Tex.App.-San Antonio Sep. 10, 2003, no pet.) (mem. op.). Counsel states Tristan was provided a copy of the brief and motion to withdraw and was further informed of his right to review the record and file his own brief. Tristan has not done so. Our duty is to review the record and consider whether the trial court abused its discretion in determining that Tristan's appellate points were frivolous. See Tex. Fam. Code Ann. § 263.405(g) (Vernon Supp. 2006); In re M.R.R., No. 04-04-00723-CV, 2004 WL 2597449, at *1 (Tex.App.-San Antonio Nov. 17, 2004, no pet.) (mem. op., per curiam) (holding that an appellate court reviews a trial court's findings under section 263.405 for abuse of discretion). In his statement of appellate points, Tristan argues that he is entitled to a new trial because the evidence is legally and factually insufficient to support the trial court's findings that three statutory grounds for termination had been met and that termination is in the best interest of the child. However, notwithstanding that Tristan did not address in his statement of appellate points an additional two statutory grounds for termination the trial court found, Tristan wholly failed to "summarize for the trial court the evidence that was missing or insufficient to sustain the findings" at the hearing on the motion for new trial and statement of appellate points. In re R.A., No. 04-06-00138-CV, 2006 WL 2548829, at *2 (Tex.App.-San Antonio Sep. 6, 2006, no pet. h.) (mem. op). Accordingly, based on our review of the record, we conclude that the trial court did not abuse its discretion in determining that Tristan's appellate points pertaining to sufficiency of the evidence are frivolous. See id. We therefore grant the motion to withdraw filed by Tristan's appellate counsel and affirm the trial court's judgment.