Opinion
09-24-00257-CV
11-15-2024
IN RE COMMITMENT OF TERRY LEE HAYDEN
On Appeal from the 253rd District Court Liberty County, Texas Trial Cause No. 23DC-CV-00484
Before Johnson, Wright and Chambers, JJ.
ORDER
PER CURIAM.
State Counsel for Offenders (SCFO) represents the Appellant, Terry Lee Hayden, in his appeal from a judgment and order of civil commitment as a sexually violent predator. See Tex. Health &Safety Code Ann. § 841.005. Counsel filed a brief that includes a single issue for appellate review:
ISSUE: Under Texas Supreme Court case law, the "behavioral abnormality" element of the State's case is conclusively established as a matter of law once the State proves the "repeat sexually violent offender" element of its case such that there are no issues that can be raised on appeal that would result in reversible error when personal and subject-matter jurisdiction are also established.
The brief submitted by counsel invokes Anders v. California, as follows:
Appellant contends that this Court should treat the brief he filed in this case similar to how it would treat a brief filed in a criminal case under Anders v. California, 386 U.S. 738 (1967) ("Anders brief"). See generally In re Schulman, 252 S.W.3d 403 (Tex. Crim. App. 2008). Appellant has filed a brief essentially saying that any issues he might raise on appeal would be "wholly frivolous" based on Bohannan and Stoddard. Cf. Schulman, 252 S.W.3d at 406 (if counsel finds the "case to be wholly frivolous, after a conscientious examination of it, he should so advise the court") and at 407 (counsel's "obligation to the appellate courts is to assure them, through the mechanism of an Anders brief, that, after thorough investigation and research, his request is well founded"). Using the Anders brief procedures as a guide, this Court is obligated to address on its merits the claim Appellant contends that this Court should treat the brief he filed in this case similar to how it would treat a brief filed in a criminal case under Anders v. California, 386 U.S. 738 (1967) ("Anders brief"). See generally In re Schulman, 252 S.W.3d 403 (Tex. Crim. App. 2008). Appellant has filed a brief essentially saying that any issues he might raise on appeal would be "wholly frivolous" based on Bohannan and Stoddard. Cf. Schulman, 252 S.W.3d at 406 (if counsel finds the "case to be wholly frivolous, after a conscientious examination of it, he should so advise the court") and at 407 (counsel's "obligation to the appellate courts is to assure them, through the mechanism of an Anders brief, that, after thorough investigation and research, his request is well founded"). Using the Anders brief procedures as a guide, this Court is obligated to address on its merits the claim.
Counsel presented a prayer for relief, as follows:
Appellant Terry Lee Hayden prays that this Court grant him any and all relief that the facts and the law require and any other relief that this Court may deem appropriate. Appellant more explicitly requests that this Court hand down an opinion deciding that this appeal cannot present reversible error based on the Texas Supreme Court's decision in Stoddard that Chapter 841's "behavioral abnormality" issue requires the State to prove only a "likelihood" of reoffending. See Tex.R.App.P. 38.1(j) (prayer in appellant's brief "must contain a short conclusion that clearly states the nature of the relief sought").
On October 21, 2024, through a notice issued by the Clerk, the Court requested that counsel either (1) file a motion to withdraw and certify that a copy of the brief, the motion to withdraw, and the appellate record has been mailed to Appellant as well as inform Appellant that he has a right to file a pro se response and a petition for review, or (2) withdraw the brief of the appellant and file a brief on the merits. In response to this notice, Counsel filed a response on behalf of Hayden, explaining in part as follows:
Undersigned counsel contends that his brief should not be treated as an Anders brief (even though the Anders procedures may serve as a useful guide in disposing of this appeal mainly by obligating this Court to determine whether counsel has made a legally correct determination that an appeal in this case would be wholly frivolous). The claim in counsel's briefing that any issues he might raise on appeal would be wholly frivolous is not predicated on a determination that the trial record does not support "any potentially plausible points of error" that one might expect to be raised in this type of case. This claim is predicated on a purely legal claim based on the Texas Supreme Court decisions in In re Commitment of Bohannan and In re Commitment of Stoddard which make it unnecessary for there even to be a review of the record for purposes of determining whether it might support any "arguable issues" (and for providing the client an opportunity to review the record and file a pro se response).
This purely legal claim does not require this Court to review the trial record for "any potentially plausible points of error" on its own without the aid of an Anders brief. See Schulman, 252 S.W.3d at 407 (Anders procedures aid the appellate courts by providing "them with a roadmap for their review of the record"). This purely legal claim requires this Court only to assure itself that undersigned counsel has made a legally correct determination that the statutory "behavioral abnormality" definition means just some "likelihood" of sexually reoffending under Bohannan and Stoddard. See Appellant's reply brief at 3 (purely state-law claim presented here requires this Court only to decide what the phrase "a present condition that creates a likelihood of [sexually violent] conduct in the future" means under Bohannan and Stoddard).
A brief that cites Anders and cases that apply Anders, presents a single issue that there are no issues that can be raised on appeal that would result in reversible error, presents a "purely legal claim" that an appeal in this case would be wholly frivolous, and asks the appellate court to issue an opinion "deciding that this appeal cannot present reversible error" is an Anders brief. The procedures Texas courts have adopted for civil cases where indigent litigants are represented by appointed counsel on appeal require the appellant's counsel to file a motion to withdraw even if the motion is premature because counsel is obligated to file a petition for review in the Supreme Court. See, e.g. In re P.M., 520 S.W.3d 24, 26-27 (Tex. 2016); see also In re Commitment of Riggs, No. 06-18-00073-CV, 2019 WL 1560688, at *1 (Tex. App.-Texarkana Apr. 11, 2019, no pet.) (declining to rule on motion to withdraw filed by SCFO counsel in a civil commitment case).
If is, therefore, ORDERED that counsel for the appellant either (1) file a motion to withdraw as counsel and certify that a copy of the brief, the motion to withdraw, and the appellate record have been mailed to Appellant and that counsel has informed Appellant in writing that he has a right to file a pro se response and a petition for review, or (2) file a motion to withdraw the brief of the appellant and a motion for leave to file a brief on the merits. The motion must be filed within fifteen days of the date of this Order.
If counsel files a motion to withdraw, he may request that the Court decline to rule on the motion so that counsel may file a petition for review and an Anders brief in the Supreme Court of Texas.
ORDER ENTERED.