in the Interest of R. M. B. and G. R. B. v. Department of Family and Protective Services ( 2014 )

Opinion issued December 11, 2014
In The
Court of Appeals
For The
First District of Texas
____________
NO. 01-14-00499-CV
____________
IN THE INTEREST OF R.M.B AND G.R.B., children
On Appeal from the 313th District Court
Harris County, Texas
Trial Court Cause No. 2013-02934J
MEMORANDUM OPINION
The trial court terminated appellant’s parental rights as to G.R.B., his child.
Appellant’s court-appointed appellate counsel has filed a motion to withdraw along
with a brief stating his professional opinion that the appeal is without merit and
that there are no arguable grounds for reversal. See Anders v. California, 386 U.S.
738, 87 S. Ct. 1396 (1967). We have reviewed the record and, having found no
reversible error, we grant counsel’s motion to withdraw and affirm the trial court’s
judgment.
Anders procedures are appropriate in parental-rights termination cases. In re
K.D., 127 S.W.3d 66, 67 (Tex. App.—Houston [1st Dist.] 2003, no pet.). An
attorney has an ethical obligation to refuse to prosecute a frivolous appeal. In re
Schulman, 252 S.W.3d 403, 407 (Tex. Crim. App. 2008). If an appointed attorney
finds a case to be wholly frivolous, his obligation to his client is to seek leave to
withdraw. Id. Counsel’s obligation to the appellate court is to assure it, through an
Anders brief, that, after a complete review of the record, the request to withdraw is
well-founded. Id. Here, counsel has certified that he delivered a copy of the brief
to appellant and informed appellant of her right to examine the appellate record
and to file a response. See Schulman, 252 S.W.3d at 408.
The brief submitted by appellant’s appointed appellate counsel states his
professional opinion that no arguable grounds for reversal exist and that any appeal
would therefore lack merit. See Anders, 386 U.S. at 744, 87 S.Ct. at 1400.
Counsel’s brief meets the minimum Anders requirements by presenting a
professional evaluation of the record and stating why there are no arguable grounds
for reversal on appeal. See id. at 744, 87 S. Ct. at 1400; Schulman, 252 S.W.3d at
409 n.23. This Court notified appellant of her right to review the record and to file
a pro se response. Appellant did not file a response.
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When we receive an Anders brief from an appellant’s appointed attorney
who asserts that no arguable grounds for appeal exist, we must determine that issue
independently by conducting our own review of the entire record. Johnson v.
Dep’t of Family & Protective Servs., No. 01-08-00749-CV, 2010 WL 5186806, at
*1 (Tex. App.—Houston [1st Dist.] Dec. 23, 2010, no pet.); see In re K.D., 127
S.W.3d at 67; In re D.E.S., 135 S.W.3d 326, 330 (Tex. App.—Houston [14th Dist.]
2004, no pet.).
Thus, our role in this appeal is to determine whether arguable grounds for
appeal exist. See id. at 827. If we determine that arguable grounds for appeal
exist, we abate the appeal and remand the case to the trial court to allow the
appointed attorney to withdraw. See id. Then, the trial court appoints another
attorney to present all arguable grounds for appeal. See id. “Only after the issues
have been briefed by new counsel may [we] address the merits of the issues
raised.” Id.
On the other hand, if our independent review of the record leads us to
conclude that the appeal is wholly frivolous, we may affirm the trial court’s
judgment by issuing an opinion in which we explain that we have reviewed the
record and find no reversible error. Id. Although we may issue an opinion
explaining why the appeal lacks arguable merit, we are not required to do so. See
Garner v. State, 300 S.W.3d 763, 766 (Tex. Crim. App. 2009). Appellant may
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challenge the holding that there are no arguable grounds for appeal by petitioning
for review in the Supreme Court of Texas. See id. at 827 & n.6.
Following Anders, we have reviewed the record and counsel’s Anders brief.
We conclude that no reversible error exists. Consequently, we affirm the judgment
of the trial court and grant counsel’s motion to withdraw.1 Attorney Donald M.
Crane must immediately send the notice required by Texas Rule of Appellate
Procedure 6.5(c) and file a copy of the notice with the Clerk of this Court. See
TEX. R. APP. P. 6.5(c).
PER CURIAM
Panel consists of Justices Keyes, Higley, and Brown.
1
Appointed counsel still has a duty to inform appellant of the result of this appeal
and notify appellant that she may, on her own, pursue a petition for review in the
Supreme Court of Texas. In re K.D., 127 S.W.3d at 68 n. 3.
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