In the Interest of A.Y.M., F.V. III, I.V., A.G., I.S., Children Appeal from County Court at Law No. 5 of Nueces County (memorandum opinion by chief justice valdez)
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NUMBER 13-16-00280-CV COURT OF APPEALS THIRTEENTH DISTRICT OF TEXAS CORPUS CHRISTI - EDINBURG IN THE INTEREST OF A.Y.M., F.V. III, I.V., A.G., I.S., CHILDREN On appeal from the County Court at Law No. 5 of Nueces County, Texas. MEMORANDUM OPINION Before Chief Justice Valdez and Justices Rodriguez and Benavides Memorandum Opinion by Chief Justice Valdez This is an accelerated appeal of a December 7, 2015 order terminating appellant’s parental rights to her children, A.Y.M., F.V. III, I.V., A.G., and I.S. Appellant wished to pursue an appeal from the order, and the trial court appointed counsel to prosecute an appeal. Appellant’s counsel has filed a motion to withdraw along with a brief stating that the appeal is without merit and that there are no arguable grounds for reversal.1 See 1 On September 10, 2015, appellant filed her notice of appeal with the district clerk of the trial court. On May 23, 2016, this Court received appellant’s notice of appeal, which had been filed with the district clerk. On June 9, 2016, the trial court reporter filed the reporter’s record in this Court. On October 17, 2016, appellant’s counsel filed his appellate brief. Anders v. California, 386 U.S. 738, 744 (1967); Porter v. Texas Dept. of Protective & Regulatory Services, 105 S.W.3d 52, 56 (Tex. App.—Corpus Christi 2003, no pet.) (permitting appointed counsel in a parental termination appeal to file a brief in compliance with Anders). We affirm the trial court's judgment but deny counsel's motion to withdraw. I. ANDERS BRIEF Pursuant to Anders v. California, appellant’s counsel filed a brief stating that his review of the record yielded no grounds of reversible error upon which an appeal can be predicated. See 386 U.S. at 744. Counsel’s brief meets the requirements of Anders as it presents a 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). 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, 319–22 (Tex. Crim. App. 2014), appellant’s counsel carefully discussed why, under controlling authority, there is no reversible error in the trial court’s judgment. Counsel has also informed this Court that appellant has been (1) notified that counsel has filed an Anders brief; (2) provided with a copy of the Anders brief; (3) informed of her right to file a pro se response and review the record preparatory to filing that response2; and (4) provided with a pro se motion for In the criminal context, the Texas Court of Criminal Appeals has held that “the pro se response 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 2 2 access to the appellate record. See Anders, 386 U.S. at 744; Kelly, 436 S.W.3d at 319– 20; see also In re Schulman, 252 S.W.3d at 409 n.23. A reasonable amount of time has passed, and we have not received a pro se response from appellant. II. INDEPENDENT REVIEW Upon receiving an Anders brief, we must conduct a full examination of all the proceedings to determine whether the case is wholly frivolous. Penson v. Ohio, 488 U.S. 75, 80 (1988). A court of appeals has two options when an Anders brief is filed. After reviewing the entire record, it may: (1) determine that the appeal is wholly frivolous and issue an opinion explaining that it finds no reversible error; or (2) determine that there are arguable grounds for appeal and remand the case to the trial court for appointment of new appellate counsel. Bledsoe v. State, 178 S.W.3d 824, 826–27 (Tex. Crim. App. 2005). If the court finds arguable grounds for appeal, it may not review those grounds until after new counsel has briefed those issues on appeal. Id. We have reviewed the entire record and counsel’s brief, and we have found nothing that would arguably support an appeal. See id. at 827–28 (“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. There is no reversible error in the record. III. MOTION TO WITHDRAW Appellant’s counsel has asked this Court for permission to withdraw as appellate deciding whether the case presents any meritorious issues.” In re Schulman, 252 S.W.3d 403, 409 n.23 (Tex. Crim. App. 2008). 3 counsel. However, the Texas Supreme Court recently held that the right to counsel in suits seeking the termination of parental rights extends to “all proceedings in [the Texas Supreme Court], including the filing of a petition for review.” In re P.M., No. 15-0171, ___ S.W.3d ___, 2016 WL 1274748, at *3 (Tex. Apr. 1, 2016) (per curiam). Accordingly, counsel’s obligation to appellant has not yet been discharged. See id. Counsel’s motion to withdraw is therefore denied at this time. See id. If appellant, after consulting with counsel, desires to file a petition for review, counsel should timely file with the Texas Supreme Court “a petition for review that satisfies the standards for an Anders brief.” See id. IV. CONCLUSION We affirm the trial court’s judgment. /s/ Rogelio Valdez ROGELIO VALDEZ Chief Justice Delivered and filed the 22dn day of November, 2016. 4
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