in the Interest of C.W., D.T., J.T., and A.T., Children ( 2018 )

Order filed August 3, 2018.
In The
Fourteenth Court of Appeals
____________
NO. 14-18-00427-CV
____________
IN THE INTEREST OF C.W., D.T., J.T., AND A.T., CHILDREN
On Appeal from the 300th District Court
Brazoria County, Texas
Trial Court Cause No. 88637-F
ORDER
Appellant’s appointed counsel, Faye Gordon, filed a brief which she
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:
(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.” Counsel then advances three
contentions which might arguably support the appeal. In her analysis of those
contentions, counsel does not explain why they are frivolous or without merit.
Rather, counsel contends the trial court’s judgment is not supported by legally or
factually sufficient evidence as to the termination grounds under Texas Family
Code section 161.001(b). Further, the Anders brief also requests reversal of the
trial court’s judgment.
Additionally, counsel has not provided the court with a transmittal letter,
accompanied by a copy of counsel’s Anders brief, notifying appellant of her right
to file a pro se brief and obtain access the appellate record which includes a form
motion for pro se access to the appellate record. A copy of the form motion is
attached.
Accordingly, we conclude counsel has not filed a brief in compliance with
the requirements of Anders v. California, 386 U.S. 738, 87 S. Ct. 1396 (1967). See
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). Finally, the brief
discloses the name of a minor’s parent or other family member in a parental-
termination case. See Tex. R. App. P. 9.8.
We strike appellant’s brief and order appellant’s counsel to file a brief on the
merits or an Anders brief that provides a professional evaluation of the issues and
explanation of why the issues are frivolous within 5 days of the date of this
order. See Echeta v. State, 510 S.W.3d 100, 105 (Tex. App.—Houston [1st Dist.]
2016, order) (providing appointed counsel the opportunity to file a new brief in the
event of an error in form due to counsel disclosing potential grounds for appeal but
failing to provide a professional evaluation). Appellant’s brief must comply with
Texas Rule of Appellate Procedure 9.8 (an alias should be used to identify the
child and the child’s family in an appeal arising out of a parental-termination case).
Additionally, if counsel files another Anders brief, counsel must comply with the
requirements of Anders v. California, 386 U.S. 738, 87 S. Ct. 1396 (1967) as
discussed herein. If counsel fails to file a brief within 5 days of this order, we will
order the trial court to conduct a hearing related to the appointment of new counsel.
All future filings by any party must comply with Texas Rule of Appellate
Procedure 9.8 or are subject to being stricken.
PER CURIAM
Panel consists of Chief Justice Frost and Justices Boyce and Busby.
Return to:
Fourteenth Court of Appeals
301 Fannin, Room 245
Houston, TX 77002
NO. 14-__-_____-CV
_____________ § COURT OF APPEALS
v. § 14TH DISTRICT
The State of Texas § HOUSTON, TEXAS
Pro se Motion for Access to Appellate Record
To the Honorable Justices of Said Court:
On ___________ [attorney to fill in date], appellant’s appointed counsel
filed a brief in the above styled and numbered cause pursuant to Anders v.
California, 386 U.S. 738 (1967).
_________________, appellant, moves this court to provide him/her access
to a copy of the appellate record including the clerk’s record and the court
reporter’s record.
Respectfully submitted,
_____________________
Pro se Appellant