in the Matter of J.T.S.M., a Child ( 2023 )

NUMBER 13-22-00398-CV
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI – EDINBURG
IN THE MATTER OF J.T.S.M., A CHILD
On appeal from the 25th District Court
of Lavaca County, Texas.
MEMORANDUM OPINION
Before Justices Benavides, Tijerina, and Peña
Memorandum Opinion by Justice Peña
J.T.S.M., a juvenile, pleaded “true” to the State’s allegations that he engaged in
three instances of delinquent conduct. See TEX. PENAL CODE ANN. §§ 28.03(b)(4)(A)
(criminal mischief over $2500 but under $30,000), 30.02(c)(2) (burglary of a building),
31.07 (unauthorized use of a motor vehicle). The trial court placed J.T.S.M. on probation
on April 16, 2021, for a term of eighteen months. The State then filed a motion to modify
order of adjudication and judgment of disposition on April 28, 2022. On June 22, 2022,
the trial court modified the terms of J.T.S.M.’s community supervision and extended his
probation to December 19, 2023.
The State filed a second motion to modify on July 11, 2022. Following a hearing
on July 26, 2022, the trial court found appellant to be a delinquent and committed him to
the Texas Juvenile Justice Department for an indeterminate period. See TEX. FAM. CODE
ANN. § 54.04. Appellant’s court-appointed counsel has filed an Anders brief. See Anders
v. California, 386 U.S. 738, 744 (1967). 1 We affirm.
I. ANDERS BRIEF
Pursuant to Anders v. California, appellant’s court-appointed appellate counsel
has filed a brief and a motion to withdraw with this Court, stating that his review of the
record yielded no grounds of error upon which an appeal can be predicated. See id.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–Edinburg 2003, no pet.))); Stafford v. State, 813 S.W.2d 503, 510 n.3 (Tex. Crim.
App. 1991).
1 See In re D.A.S., 973 S.W.2d 296, 297, 299 (Tex. 1998) (orig. proceeding). In D.A.S., the Texas
Supreme Court concluded that Anders procedures protect juveniles’ statutory right to counsel on appeal in
delinquency cases and so held that those procedures apply in juvenile cases. Id. at 297; see Anders v.
California, 386 U.S. 738, 744 (1967).
2
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, 319–20 (Tex. Crim. App. 2014),
appellant’s counsel carefully discussed why, under controlling authority, there is no
reversible error in the trial court’s judgment. Appellant’s counsel has informed this Court
in writing that he: (1) notified appellant and his grandparents2 that counsel has filed an
Anders brief and a motion to withdraw; (2) provided the appellant and his grandparents
with copies of both pleadings; (3) informed the appellant and his grandparents of
appellant’s rights to file a pro se response, to review the record prior to filing that
response, and to seek discretionary review if we conclude that the appeal is frivolous;
and (4) provided appellant and his grandparents with a form motion for pro se access to
the appellate record that only requires appellant’s signature and date with instructions to
file the motion within ten days. See Anders, 386 U.S. at 744; Kelly, 436 S.W.3d at 319–
320; see also In re Schulman, 252 S.W.3d at 408–09. An adequate amount of time has
passed, and appellant has not requested the record nor filed a pro se response.
II. INDEPENDENT REVIEW
Upon receiving an Anders brief, we must conduct a full examination of all the
proceedings to determine whether the appeal is wholly frivolous. Penson v. Ohio, 488
U.S. 75, 80 (1988). We have reviewed the record and counsel’s brief, and we have found
no reversible error. See Bledsoe v. State, 178 S.W.3d 824, 827–28 (Tex. Crim. App.
2005) (“Due to the nature of Anders briefs, by indicating in the opinion it considered the
issues raised in the brief and reviewed the record for reversible error but found none, the
2 The record indicates that J.T.S.M.’s maternal grandparents R.G. and E.G. are his current legal
guardians. Accordingly, J.T.S.M.’s counsel copied them on all legal correspondence, including these
appellate briefs and motions.
3
court of appeals met the requirements of Texas Rule of Appellate Procedure 47.1.”);
Stafford, 813 S.W.2d at 509.
III. MOTION TO WITHDRAW
In accordance with Anders, appellant’s attorney has asked this Court for
permission to withdraw as counsel. See Anders, 386 U.S. at 744; see also In re
Schulman, 252 S.W.3d at 408 n.17. We grant counsel’s motion to withdraw. Within five
days of the date of this Court’s opinion, counsel is ordered to send a copy of this opinion
and this Court’s judgment to appellant and his grandparents and to advise them of
appellant’s right to file a petition for discretionary review. 3 See TEX. R. APP. P. 48.4; see
also In re Schulman, 252 S.W.3d at 412 n.35; Ex parte Owens, 206 S.W.3d 670, 673
(Tex. Crim. App. 2006).
IV. CONCLUSION
We affirm the trial court’s judgment.
L. ARON PEÑA JR.
Justice
Delivered and filed on the
9th day of February, 2023.
3 We note that any further appeal must be taken to the Texas Supreme Court. See TEX. FAM. CODE
ANN. § 56.01(a) (providing that appeal is to be taken to the courts of appeals and the Texas Supreme
Court); see also Ex parte Valle, 104 S.W.3d 888, 889–90 (Tex. Crim. App. 2003) (observing that the Texas
Supreme Court, and not the Texas Court of Criminal Appeals, has jurisdiction on direct appeal
of juvenile matters except in very limited circumstances).
No substitute counsel will be appointed. Should appellant wish to seek further review of his case by
the Texas Supreme Court, he 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 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. 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. Id. R. 53.2.
4