Opinion
14-23-00498-CV
10-10-2023
IN THE INTEREST OF C.K.C., A CHILD
On Appeal from the County Court at Law Grimes County, Texas Trial Court Cause No. 35705-CCL
Panel consists of Chief Justice Christopher and Justices Bourliot and Hassan.
ORDER
PER CURIAM
Appellant's appointed counsel filed a brief which he designates as an Anders brief. See Anders v. California, 386 U.S. 738, 87 S.Ct. 1396 (1967); In re D.E.S., 135 S.W.3d 326, 329-30 (Tex. App.-Houston [14th Dist.] 2004, no pet.) (applying Anders procedures to a parental-termination case). To comply with Anders, counsel must do the following:
After the Anders brief was filed, appellant retained counsel to file an Anders response on her behalf. The trial court allowed Weismuller to withdraw his representation. Appellant is now represented by retained counsel.
(1)Either (a) advance contentions which might arguably support the appeal, but, in the attorney's professional opinion are frivolous; or (b) present a professional evaluation of the record demonstrating why there are no arguable grounds to be advanced. See High v. State, 573 S.W.2d 807 (Tex. Crim. App. 1978).
(2)File a copy of the transmittal letter to their client accompanying a copy of the Anders brief in which they inform appellant of the right to
file a pro se brief and obtain a copy of the record by filing a motion for pro se access to the appellate record. See Kelly v. State, 436 S.W.3d 313 (Tex. Crim. App. 2014).
The Anders procedure balances an indigent parent's constitutional right to appointed counsel on appeal and counsel's obligation not to prosecute frivolous appeals. See In re P.M., 520 S.W.3d 24, 27 n.10 (Tex. 2016). Arguments which may support an appeal must be disclosed by appointed counsel. See Banks v. State, 341 S.W.3d 428, 430 (Tex. App.-Houston [1st Dist.] 2009, order). Appointed counsel should identify potential arguments, explain the ground, and cite to applicable legal authority and pertinent evidence. Id. at 431. An issue which is arguable on the merits is, by definition, not frivolous. Sam v. State, 467 S.W.3d 685, 687 (Tex. App.-Houston [14th Dist.] 2015, order). Appointed counsel may not simply justify the contention that the potential error is not an arguable ground with a conclusory statement that no grounds for appeal exist. Banks, 341 S.W.3d at 431 .
Counsel's brief contains a conclusory statement that "the appeal is frivolous and without merit and that the record reflects no reversible error or grounds upon which an appeal . . . can be fairly predicated." Appellant's newly retained counsel filed a response to the Anders brief, in which counsel points to numerous non-frivolous grounds for appeal.
We conclude there may be non-frivolous issues in this appeal which merit further briefing. We strike appellant's Anders brief and order appellant's retained counsel to file a brief on the merits within 10 days of the date of this order.