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In re A.S.

COURT OF APPEALS THIRTEENTH DISTRICT OF TEXAS CORPUS CHRISTI - EDINBURG
Nov 13, 2014
NUMBER 13-14-00445-CV (Tex. App. Nov. 13, 2014)

Opinion

NUMBER 13-14-00445-CV

11-13-2014

IN THE INTEREST OF A.S., J.D., and S.D., CHILDREN


On appeal from the 156th District Court of San Patricio County, Texas.

MEMORANDUM OPINION

Before Justices Rodriguez, Benavides, and Perkes
Memorandum Opinion by Justice Perkes

Appellants N.S. and F.D. challenge the trial court's judgment terminating their parental rights with respect to A.S., J.D. and S.D., minor children. We affirm.

We refer to appellants and the minor children by their initials in accordance with rule of appellate procedure 9.8. See TEX. R. APP. P. 9.8(b) (providing that in a parental-rights termination case, "the court must, in its opinion, use an alias to refer to a minor, and if necessary to protect the minor's identity, to the minor's parent or other family member"); see also TEX. FAM. CODE ANN. § 109.002(d) (West, Westlaw through 2013 3d C.S.) ("On the motion of the parties or on the court's own motion, the appellate court in its opinion may identify the parties by fictitious names or by their initials only.").

I. COMPLIANCE WITH ANDERS

Pursuant to Anders v. California, appellants' court-appointed appellate counsel have filed briefs and motions to withdraw with this Court, stating that their review of the record yielded no grounds of error upon which an appeal can be predicated. 386 U.S. 738, 774—45 (1967); Porter v. Tex. Dep't of Protective & Regulatory Servs., 105 S.W.3d 52, 56 (Tex. App.—Corpus Christi 2003, no pet.) ("W]hen appointed counsel represents an indigent client in a parental termination appeal and concludes that there are no non-frivolous issues for appeal, counsel may file an Anders-type brief."). Counsels' briefs meet the requirements of Anders as they present professional evaluation demonstrating why there are no arguable grounds to advance on appeal. See In re Schulman, 252 S.W.3d 403, 407 n.9 (Tex. Crim. App. 2008) ("In Texas, an Anders brief need not specifically advance 'arguable' points of error if counsel finds none, but it must provide record references to the facts and procedural history and set out pertinent legal authorities.") (citing Hawkins v. State, 112 S.W.3d 340, 343-44 (Tex. App.—Corpus Christi 2003, no pet.)); Stafford v. State, 813 S.W.2d 503, 510 n.3 (Tex. Crim. App. 1991).

The State has not filed a brief. Instead, the State responded to the Anders brief by acknowledging that counsel for appellant concluded that the appeal was frivolous and without merit and informing us that it would not file an appellee's brief unless necessary after reviewing any pro se response or upon order of this Court.

In compliance with High v. State, 573 S.W.2d 807, 813 (Tex. Crim. App. [Panel Op.] 1978) and Kelly v. State, 436 S.W.3d 313, 318-19 (Tex. Crim. App. 2014), appellants' counsel carefully discussed why, under controlling authority, there is no reversible error in the trial court's judgment. Counsel have informed this Court, in writing, that they have: (1) notified appellants that counsel have filed an Anders brief and motion to withdraw; (2) provided appellants with copies of both pleadings; (3) informed appellants of appellants' rights to file a pro se response, review the record preparatory to filing that response, and seek discretionary review if the court of appeals concludes that the appeal is frivolous; and (4) provided appellant with a copy of the record. See Anders, 386 U.S. at 744; Kelly, 436 S.W.3d at 318-19, Stafford, 813 S.W.2d at 510 n.3; see also In re Schulman, 252 S.W.3d at 409 n.23. More than an adequate time has passed, and appellants have not filed a pro se response. See In re Schulman, 252 S.W.3d at 409.

In the criminal context, the Texas Court of Criminal Appeals has held that "the pro se response [to a 'frivolous appeal' brief] need not comply with the rules of appellate procedure in order to be considered. Rather, the response should identify for the court those issues which the indigent appellant believes the court should consider in deciding whether the case presents any meritorious issues." In re Schulman, 252 S.W.3d 403, 409 n.23 (Tex. Crim. App. 2008) (quoting Wilson v. State, 955 S.W.2d 693, 696-97 (Tex. App.—Waco 1997, no pet.)).

II. INDEPENDENT REVIEW

Upon receiving an Anders brief, this Court must conduct a full examination of all proceedings to determine whether the case is wholly frivolous. See Penson v. Ohio, 488 U.S. 75, 80 (1988); see also In re G.M., No. 13-08-00569-CV, 2009 WL 2547493, at *1 (Tex. App.—Corpus Christi Aug. 20, 2009, no pet.) (mem. op.). We have reviewed the entire record and counsels' briefs, and we have found nothing that would arguably support an appeal. See Bledsoe v. State, 178 S.W.3d 824, 826-28 (Tex. Crim. App. 2005) ("Due to the nature of Anders briefs, by indicating in the opinion that it considered the issues raised in the briefs and reviewed the record for reversible error but found none, the court of appeals met the requirement of Texas Rule of Appellate Procedure 47.1."); Stafford, 813 S.W.2d at 509. Accordingly, we affirm the judgment of the trial court.

III. MOTION TO WITHDRAW

In accordance with Anders, both counsel ask this Court for permission to withdraw as counsel for appellants. See Anders, 386 U.S. at 744; see also In re Schulman, 252 S.W.3d at 408 n.17 (citing Jeffery v. State, 903 S.W.2d 776, 779-80 (Tex. App.—Dallas 1995, no pet.) ("If an attorney believes the appeal is frivolous, he must withdraw from representing the appellant. To withdraw from representation, the appointed attorney must file a motion to withdraw accompanied by a brief showing the appellate court that the appeal is frivolous.") (citations omitted)). We grant counsels' motions to withdraw. Within five days of the date of this Court's opinion, we order counsel to send a copy of the opinion and judgment to appellants and to advise appellants of their right to pursue a petition for review in the Texas Supreme Court.See In re K.D., 127 S.W.3d 66, 68 n.3 (Tex. App.—Houston [1st Dist.] 2003, no pet.).

No substitute counsel will be appointed. Should appellants wish to seek further review of this case by the Texas Supreme Court, they must either retain an attorney to file a petition for review or file a pro se petition for review. Any petition for review must be filed with the Texas Supreme Court clerk within forty-five days after the date of either this opinion or the last ruling by this Court on all timely filed motions for rehearing or en banc reconsideration. See TEX. R. APP. P. 53.7(a). Any petition for review must comply with the requirements of rule 53.2 of the Texas Rules of Appellate Procedure. See id. at R. 53.2.
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GREGORY T. PERKES

Justice
Delivered and filed the 13th day of November, 2014.


Summaries of

In re A.S.

COURT OF APPEALS THIRTEENTH DISTRICT OF TEXAS CORPUS CHRISTI - EDINBURG
Nov 13, 2014
NUMBER 13-14-00445-CV (Tex. App. Nov. 13, 2014)
Case details for

In re A.S.

Case Details

Full title:IN THE INTEREST OF A.S., J.D., and S.D., CHILDREN

Court:COURT OF APPEALS THIRTEENTH DISTRICT OF TEXAS CORPUS CHRISTI - EDINBURG

Date published: Nov 13, 2014

Citations

NUMBER 13-14-00445-CV (Tex. App. Nov. 13, 2014)