Opinion
05-24-00071-CV
06-13-2024
IN THE MATTER OF A. A., JR., A Juvenile
On Appeal from the 451st Judicial District Court Kendall County, Texas Trial Court Cause No. 22-001-JV
ORDER
BILL PEDERSEN, III JUSTICE
This is an appeal from an order transferring appellant from the Texas Juvenile Justice Department (TJJD) to the Texas Department of Criminal Justice (TDCJ). Appellant's court appointed attorney filed a notice of appeal on appellant's behalf and has since filed a brief, stating that in his professional opinion, the appeal is without merit and there are no arguable grounds for reversal. See Anders v. California, 388 U.S. 738, 744 (1967)
Anders procedures are appropriate in appeals from juvenile transfer hearings. See In Re D.A.S., 973 S.W.2d 226, 297 (Tex. 1998) (orig. proceeding) (Because Anders protects juveniles' statutory right to counsel on appeal, we hold the procedures enumerated in Anders apply to juvenile appeals); In the Matter of C.S., No. 05-23-00951-CV, 2024 WL 2075841, at *1 (Tex. App.-Dallas May 9, 2024, n.p.h.) (mem. op.) (applying Anders procedures in appeal from juvenile transfer order); In re R.M., III, No. 13-09-00316-CV, 2010 WL 467414, at *1 (Tex. App-Corpus Christi-Edinburg Feb. 11, 2010, no pet.) (mem. op.) (same). An attorney has an ethical obligation to refuse to prosecute a frivolous appeal. In re Schulman, 252 S.W.3d 403, 407 (Tex. Crim. App. 2008). If appointed appellate counsel determines an appeal is wholly frivolous, counsel's obligation to the client may be satisfied by filing an appellate brief meeting the standards set in Anders and its progeny. See Anders, 388 U.S. at 744; In re P.M., 520 S.W.3d 24, 27 & nn. 9-10 (Tex. 2016) (per curiam).
In Anders, the United States Supreme Court outlined a procedure for ensuring that an indigent defendant's right to counsel on appeal is honored when his appointed attorney concludes that the appeal is without merit. Anders, 386 U.S. at 744. If appointed attorney finds, after a conscientious examination of the record, that the case is "wholly frivolous," he or she should so advise the appellate court and file a brief referring to anything in the record that might arguably support the appeal. See id.; Schulman, 252 S.W.3d at 406.
An Anders brief must "contain a professional evaluation of the record demonstrating why, in effect, there are no arguable grounds to be advanced." High v. State, 573 S.W.2d 807, 812. A proper Anders brief must "contain references to the record, citations to authority, and legal analysis." See id. And, at a minimum, it must also "refer to pages in the record where objections were made, the nature of the objection, the trial court's ruling, and discuss why either the trial court's ruling was correct or why the appellant was not harmed by the ruling of the court." Id. at 813.
These uniform Anders briefing requirements serve numerous, important purposes. Briefs complying with these requirements help "safeguard against hastily-drawn or mistaken conclusions" that an appeal is wholly frivolous. See Interest of N.F.M., 582 S.W.3d 539, 542 (Tex. App-San Antonio 2018, no pet.) (en banc). They reassure the appellate court that counsel has thoroughly and conscientiously reviewed the record for potential issues. Schulman, 252 S.W.3d at 407. Briefs satisfying these requirements also provide "a roadmap for [the court's] review of the record because the court itself must be assured that the attorney has made a legally correct determination that the appeal is frivolous." Id.; see also D.A.S., 973 S.W.2d at 297. Moreover, such briefs ensure indigent parties "receive substantially the same treatment as nonindigent defendants," have some understanding as to why their lawyer is not advocating on their behalf, and provide them with some basis to determine-without the assistance of a lawyer-whether to file a pro se brief. See Schulman, 252 S.W.3d at 407-08; D.A.S., 973 S.W.2d at 297.
When an appellate court receives an Anders brief from appellant's attorney asserting that no arguable grounds for appeal exist, we must determine that issue independently by conducting our own review of the entire record. Anders, 386 U.S. at 744. If we conclude, after conducting an independent review, that "appellate counsel has exercised professional diligence in assaying the record for error" and agree that the appeal is frivolous, we should affirm the trial court's judgment. Arrevalos v. State, 606 S.W.3d 912, 915 (Tex. App-Dallas 2020, no pet.). If, however, we conclude either that appellate counsel has not adequately discharged the constitutional duty to review the record for any arguable error, or that the appeal is not wholly frivolous, we may order appellate counsel to provide new briefing or we may abate the appeal and return the cause to the trial court for the appointment of new appellate counsel. See id. at 915-16.
Here, appellant was adjudicated delinquent after entering a plea of true to engaging in delinquent conduct by committing the felony offense of aggravated robbery. The trial court sentenced appellant to twenty years' confinement in TJJD, subject to a possible transfer to TDCJ. Several months later, following a hearing, the trial court signed an order transferring appellant to TDJC on his 19th birthday to serve the remainder of his sentence. This appeal from the transfer order followed.
Counsel has discussed that this appeal is without merit and frivolous because the record reflects no reversible error and, in his opinion, there are no grounds upon which an appeal can be predicated. Counsel provides a detailed recitation of the evidence, including references to the record, as well as legal analysis with citations to authority explaining why appellant received the effective representation of counsel at the adjudication hearing and concludes appellant's plea of true at the adjudication hearing was voluntary.
However, this is an appeal following a transfer hearing under family code section 54.11. See Tex. Fam. Code § 54.11. At such hearings, a juvenile is neither being adjudicated nor sentenced. In re D.L. 198 S.W.3d. 228, 230 (Tex. App-San Antonio 2006, pet. denied). Rather, the transfer hearing is a "second chance hearing" after the juvenile has already been sentenced to a determinate number of years. Id. At the transfer hearing, the trial court determines whether the juvenile should be incarcerated or released. Matter of J.M.O., 980 S.W.2d 811, 813 (Tex. App-San Antonio 1998, writ denied). We review a trial court's decision to transfer under an abuse of discretion standard, and we consider the factors listed in section 54.11(k) of the family code. See Tex. Fam. Code 54.11(k); In re J.L.C., 245 S.W.3d 110, 113 (Tex. App.-Dallas 2008, no pet.).
Because Counsel's brief fails to discuss the transfer hearing or address those factors, we conclude the Anders brief in this case does not satisfy Anders briefing requirements. We STRIKE the Anders brief filed in this case on June 10, 2024 and ORDER appointed counsel to file, within TEN DAYS of the date of this order, either a new brief on the merits or a new brief that complies with the uniform Anders briefing requirements. In doing so, we express no opinion as to whether there is, or is not, a potentially meritorious issue in this record; determining whether the form of an Anders brief is sufficient is an inquiry that is legally distinct from determining whether, in substance, counsel has correctly concluded the appeal is wholly frivolous. See Arevalos, 606 S.W.3d 916 n.4; Interest of N.F.M., 582 S.W.3d at 546.