in the Interest of R.L.M., B.M.M., C.M., J.N.M., J.A., T.T., and J.J.R. Children ( 2008 )

NO. 07-07-0489-CV
IN THE COURT OF APPEALS
FOR THE SEVENTH DISTRICT OF TEXAS
AT AMARILLO
PANEL B
JUNE 30, 2008
______________________________
IN THE INTEREST OF R.L.M., B.M.M., C.M.,
J.N.M., J.A., T.T. and J.J.R.
_________________________________
FROM THE 140TH DISTRICT COURT OF LUBBOCK COUNTY;
NO. 2005-532,950; HON. KEVIN HART, PRESIDING
_______________________________
On Second Abatement and Remand
_______________________________
Before QUINN, C.J., and CAMPBELL and HANCOCK, JJ.
Appellant Juaquin Martinez, Jr., appeals from the termination of his parental rights
to his minor children, B.M.M., C.M., J.N.M., and J.J.R. His appointed counsel filed a
motion to withdraw, together with an Anders1 brief, wherein she certified that, after
diligently searching the record, she concluded that the appeal was without merit.2 Along
with her brief, counsel attached a copy of a letter sent to appellant informing him of
counsel’s belief that there was no reversible error and of appellant’s right to file a response
1
Anders v. California, 386 U.S. 738, 744-45, 87 S. Ct. 1396, 18 L. Ed. 2d 492 (1967).
2
This court has held that appointed counsel m ay file an Anders brief in an appeal from an order
term inating parental rights. See In re A.W .T., 61 S.W .3d 87, 88 (Tex. App.–Am arillo 2001, no pet.).
or brief pro se. By letter dated May 5, 2008, this court notified appellant of his right to file
a response and set June 4, 2008, as the deadline to do so. Appellant filed his response
on May 20, 2008.
In an opinion issued on May 28, 2008, this court discussed appellate counsel’s brief
and noted counsel’s conclusion that the appeal was frivolous. Counsel (i.e.Terri
Morgeson) also moved to withdraw due to her conclusion. Yet, our review of the record
led us to conclude that there were potentially arguable issues for review. Thus, we granted
appellate counsel’s motion to withdraw and abated the matter back to the trial court for the
appointment of new counsel. In responding to our order, the trial court re-appointed Terri
Morgeson as counsel.3
Accordingly, (and to avoid any appearance of impropriety inherent in assigning one
who has publically concluded that his or her client has no viable appeal to represent the
client on appeal), we again abate and remand the cause to the trial court for the
appointment of new counsel, other than Terri Morgeson, per the dictates of Anders and its
progeny. The trial court shall further order the newly appointed counsel to file an
appellant’s brief in accordance with our prior abatement order, as per the Texas Rules of
Appellate Procedure, by August 18, 2008. Any responding brief which the State wishes
to file shall be filed within 30 days after the filing of appellant’s brief. Finally, the trial court
shall cause the name, address, and state bar number of the newly appointed counsel to
be included in a supplemental transcript which transcript shall be filed with the clerk of the
court by July 10, 2008.
Per Curiam
3
W e assum e that this is the sam e Terri Morgeson who filed the aforem entioned Anders brief and who
was perm itted to withdraw from the case since the state bar num bers are the sam e.
2