in the Interest of N.F.M. and S.R.M. ( 2018 )


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  •                             Fourth Court of Appeals
    San Antonio, Texas
    OPINION
    No. 04-18-00475-CV
    IN THE INTEREST OF N.F.M. and S.R.M.
    From the 57th Judicial District Court, Bexar County, Texas
    Trial Court No. 2017PA00070
    Honorable John D. Gabriel, Jr., Judge Presiding
    OPINION ON MOTION FOR EN BANC RECONSIDERATION
    OF ORDER STRIKING COUNSEL’S ANDERS BRIEF
    Opinion by: Luz Elena D. Chapa, Justice
    Dissenting Opinion by: Sandee Bryan Marion, Chief Justice, joined by Karen Angelini, Justice
    and Marialyn Barnard, Justice
    Sitting en banc:      Sandee Bryan Marion, Chief Justice
    Karen Angelini, Justice
    Marialyn Barnard, Justice
    Rebeca Martinez, Justice
    Patricia Alvarez, Justice
    Luz Elena D. Chapa, Justice
    Irene Rios, Justice
    Delivered and Filed: December 19, 2018
    RELIEF DENIED
    Pending before the court is counsel’s motion for en banc reconsideration of this court’s
    order striking the brief he filed pursuant to Anders v. California, 
    386 U.S. 738
    (1967). Sitting en
    banc and considering the merits of counsel’s motion, we hold the Anders briefing requirements
    that apply uniformly in criminal and juvenile appeals also apply in termination appeals. Because
    04-18-00475-CV
    counsel’s Anders brief does not satisfy the uniform Anders briefing requirements, we deny counsel
    relief from the order striking his Anders brief.
    BACKGROUND
    This is an appeal from an order terminating appellant’s parental rights. After a four-day
    jury trial, the jury found the parent–child relationship between appellant and her children should
    be terminated. 1 On July 12, 2018, the trial court signed a final order, appellant filed a notice of
    appeal, and because appellant is indigent, the trial court appointed appellate counsel. After the
    appellate record was filed, counsel filed an Anders brief and a motion to withdraw.
    Counsel’s Anders brief was struck on September 21, 2018, because it did not contain a
    professional evaluation of the record. Counsel filed a motion for en banc reconsideration of the
    September 21, 2018 order. Notably, counsel does not argue that the order was legally incorrect.
    Counsel does not argue that his brief satisfies the basic requirements for Anders briefs. Counsel
    also does not cite any authority regarding Anders briefs or discuss the requirements of an Anders
    brief. The motion’s sole contention is that, in fifteen cases dating back to 2014, this court did not
    strike his Anders briefs in which the substantive portions were identical, word for word, to the
    brief filed in this case. The motion asks this court to “resolve the conflict” between the September
    21, 2018 order and this court’s prior decisions in those fifteen cases. We construe this motion as a
    request to vacate the September 21, 2018 order.
    Before addressing whether we should vacate our order, we note the cases cited by counsel
    are largely distinguishable. Although one of the fifteen cases counsel cites involved a jury trial,
    the fourteen more recent cases involved bench trials. Counsel’s Anders brief in this case, which
    involved a jury trial, concluded this appeal is wholly frivolous because “the evidence adduced at
    1
    The jury answered one broad-form question that incorporated both the best-interest requirement with five alternative
    grounds for termination.
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    04-18-00475-CV
    trial is sufficient to satisfy the court’s findings” (emphasis added). In bench-trial cases, this
    boilerplate statement facially raises no significant concerns. But in this case, the boilerplate
    statement is concerning because this case was tried to a jury. Although the dissent makes light of
    this concern by characterizing this oversight as a mere typographical error, our concern is
    amplified by the absence of any mention or discussion in counsel’s brief of voir dire, the charge
    conference, and/or the jury charge. However, to address any apparent inconsistency, we clarify
    that the uniform Anders briefing requirements that apply in criminal appeals and juvenile appeals
    apply in termination appeals.
    REQUIREMENTS FOR ANDERS BRIEFS IN TERMINATION APPEALS
    The “involuntary termination of parental rights involves fundamental constitutional
    rights.” In re G.M., 
    596 S.W.2d 846
    , 846 (Tex. 1980). To protect these fundamental constitutional
    rights, the Texas Legislature has guaranteed each parent the right to counsel in a termination
    proceeding brought by a governmental entity. TEX. FAM. CODE. § 107.106. If appointed appellate
    counsel in a termination appeal determines an appeal is wholly frivolous, “[c]ounsel’s obligation
    to the client may still be satisfied by filing an appellate brief meeting the standards set in Anders
    v. California, and its progeny.” In re P.M., 
    520 S.W.3d 24
    , 27 & nn. 9–10 (Tex. 2016) (per curiam)
    (citation omitted). The “progeny” to which the supreme court referred in P.M. were decisions by
    Texas courts in criminal and juvenile appeals. See 
    id. at nn.
    9–10, 14. 2 Thus, when appointed
    counsel determines a termination appeal is wholly frivolous, the supreme court has expressly stated
    counsel should file an Anders brief, and it referred to the uniform Anders briefing requirements in
    criminal and juvenile appeals. See 
    id. 2 In
    those footnotes, the supreme court referred to or discussed In re D.A.S., 
    973 S.W.2d 296
    , 297, 299 (Tex. 1998) (a
    juvenile case), In re Schulman, 
    252 S.W.3d 403
    , 406 n.9 (Tex. Crim. App. 2008) (orig. proceeding) (a criminal case),
    and High v. State, 
    573 S.W.2d 807
    , 812–13 (Tex. Crim. App. [Panel Op.] 1978) (the seminal Texas case on Anders
    briefing requirements in criminal appeals).
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    04-18-00475-CV
    A. The Uniform Anders Briefing Requirements
    An Anders brief must “contain a professional evaluation of the record demonstrating why,
    in effect, there are no arguable grounds to be advanced.” High v. State, 
    573 S.W.2d 807
    , 812 (Tex.
    Crim. App. [Panel Op.] 1978) (cited by 
    P.M., 520 S.W.3d at 27
    n.14, in reference to what an
    Anders brief is). “This evaluation requires not only that counsel refer the court to anything in the
    record that might arguably support the appeal, citing applicable legal authorities, but it also
    requires appellate counsel to discuss the evidence introduced at trial which entails providing the
    reviewing court with ready references to the record.” Stafford v. State, 
    813 S.W.2d 503
    , 510 n.3
    (Tex. Crim. App. 1991). More specifically, as this court has held, an Anders brief “must
    demonstrate that counsel has conscientiously examined the record and determined that the appeal
    is so frivolous that the appellant is not entitled to counsel on appeal. A proper Anders brief
    therefore must contain references to the record, citations to authority, and legal analysis.” Nichols
    v. State, 
    954 S.W.2d 83
    , 85 (Tex. App.—San Antonio 1997, order) (per curiam) (internal citations
    omitted) (citing 
    High, 573 S.W.2d at 812
    –13). In other words, “counsel should present, along with
    a statement of the strongest possible arguments for the contentions, a brief explanation of the
    contrary authority that led counsel to conclude that the contentions were frivolous.” WAYNE R.
    LAFAVE, ET AL., 3 CRIM. PROC. § 11.2(c) (4th ed.) (citing 
    High, 573 S.W.2d at 807
    ).
    These uniform Anders briefing requirements serve numerous, important purposes. Briefs
    complying with these requirements help “safeguard against hastily-drawn or mistaken
    conclusions” that an appeal is wholly frivolous. See 
    id. at §
    11.2(c) & n.135. They reassure the
    appellate court that counsel has thoroughly and conscientiously reviewed the record for potential
    issues. 
    Schulman, 252 S.W.3d at 407
    ; 
    Nichols, 954 S.W.2d at 85
    . Briefs satisfying these
    requirements also provide “a roadmap for [the court’s] review of the record because the court itself
    must be assured that the attorney has made a legally correct determination that the appeal is
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    04-18-00475-CV
    frivolous.” 
    Schulman, 252 S.W.3d at 407
    ; see 
    D.A.S., 973 S.W.2d at 297
    . Moreover, such briefs
    ensure indigent parents whose rights have been terminated “receive substantially the same
    treatment as nonindigent defendants,” have some understanding as to why their lawyer is not
    advocating on their behalf, and provide them with some basis to determine—without the assistance
    of a lawyer—whether to file a pro se brief. See 
    D.A.S., 973 S.W.2d at 297
    ; 
    Schulman, 252 S.W.3d at 407
    –08.
    These purposes would be subverted if, as the dissent argues, a “professional evaluation”
    included nothing more than a detailed summary of the evidence at trial, and a discussion of and
    citations to Anders v. California and its progeny. In any appeal, an appellant’s brief must contain
    not only a “Statement of the Case” and a “Statement of the Facts” (preferably with record cites),
    see TEX. R. APP. P. 38.1(d), (g), but also an “Argument” section “contain[ing] a clear and concise
    argument for the contentions made, with appropriate citations to authorities and to the record.” 
    Id. R. 38.1(i).
    This court uniformly applies this basic briefing requirement to issues in merits briefs
    when litigants can afford to retain counsel. 3 If appellate courts do not ensure Anders briefs are held
    to the same standard, then indigent parents would not “receive substantially the same treatment as
    nonindigent” litigants. See 
    D.A.S., 973 S.W.2d at 297
    ; see also In re E.L.Y., 
    69 S.W.3d 838
    , 842
    (Tex. App.—Waco 2002, order) (per curiam) (holding Anders briefs in termination appeals must
    comply with Rule 38.1). And when, as here, a parent is present for the trial, even the most thorough
    description of the evidence admitted at trial will merely tell the parent what the parent already
    knows; the Anders brief will be of little to no assistance to the parent in understanding why counsel
    3
    See, e.g., Black v. Watts, No. 04-17-00489-CV, 
    2018 WL 3747746
    , at *6 (Tex. App.—San Antonio Aug. 8, 2018,
    pet. filed) (mem. op.) (holding failure to comply with Rule 38.1(i) waives the issue); Lajzerowicz v. Lajzerowicz, No.
    04-16-00491-CV, 
    2018 WL 626593
    , at *4 (Tex. App.—San Antonio Jan. 31, 2018, no pet.) (mem. op.) (same);
    Mauricio v. Cervantes, No. 04-16-00260-CV, 
    2017 WL 2791324
    , at *4 (Tex. App.—San Antonio June 28, 2017, no
    pet.) (mem. op) (same); Estate of Perez-Muzza, No. 04-17-00718-CV, 
    2018 WL 4096388
    , at *2 n.1 (Tex. App.—San
    Antonio Aug. 29, 2018, pet. filed) (mem. op.) (same); In re M.I.W., No. 04-17-00207-CV, 
    2018 WL 1831678
    , at *3
    n.4 (Tex. App.—San Antonio Apr. 18, 2018, no pet.) (mem. op.) (same).
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    04-18-00475-CV
    is not advocating on his or her behalf and in determining whether—without the advice of counsel—
    to file a pro se brief. See 
    D.A.S., 973 S.W.2d at 297
    ; 
    Schulman, 252 S.W.3d at 407
    –08.
    Like counsel’s motion, the dissent cites no authority that a summary of the evidence at trial
    with citations to the record, and assertions that an appeal is wholly frivolous with citations to
    Anders, is a “professional evaluation of the record.” The dissent goes further than counsel’s motion
    and posits our order is legally incorrect. The dissent’s position (1) is irreconcilable with the
    common understanding of the term “professional evaluation”; (2) violates High’s mandate:
    [We] will not accept [Anders] briefs unless they discuss the evidence adduced at
    trial . . . refer to pages in the record where objections were made, the nature of the
    objection, the trial court’s ruling, and discuss either why the trial court’s ruling was
    correct or why the appellant was not harmed by the ruling of the court . . . 
    . 573 S.W.2d at 813
    (emphasis added); (3) overlooks this court’s requirement that an Anders brief
    must contain “legal analysis,” 
    Nichols, 954 S.W.2d at 85
    ; (4) conflicts with at least six other Texas
    courts of appeals’ application of the uniform Anders briefing requirements; 4 and (5) is inconsistent
    4
    See, e.g., Johnson v. State, 
    885 S.W.2d 641
    , 648 (Tex. App.—Waco 1994, order) (per curiam) (striking Anders brief
    that “spent thirty-six pages . . . reviewing . . . the evidence” because it “failed to refer to pages in the record where
    objections were made”); Loggins v. State, 
    701 S.W.2d 51
    , 52–53 (Tex. App.—Dallas 1985, order) (striking Anders
    brief that “outline[d] the procedural history [and] summarize[d] the substance of the witnesses’ testimony”); see also
    Echeta v. State, 
    510 S.W.3d 100
    , 102–04 (Tex. App.—Houston [1st Dist.] 2016, order) (striking brief that omitted
    discussion of a critical stage of trial); Hung Le v. State, 
    510 S.W.3d 96
    , 99 (Tex. App.—Houston [1st Dist.] 2016,
    order) (striking brief that “contain[ed] no reference to or analysis of the adequacy of appellant’s legal representation
    at trial”); D.M. v. Tex. Dep’t of Family & Protective Servs., No. 03-12-00826-CV, 
    2013 WL 839770
    , at *1 (Tex.
    App.—Austin Feb. 28, 2013, order) (mem. op.) (striking Anders brief because it did not discuss possible jury charge
    error); Banks v. State, 
    341 S.W.3d 428
    , 430 (Tex. App.—Houston [1st Dist.] 2009, order) (requiring re-briefing when
    statement about ineffective assistance of counsel was “conclusory”); Ezernack v. State, No. 12-01-00213-CR, 
    2002 WL 1610028
    , at *1 (Tex. App.—Tyler July 17, 2002, order) (per curiam) (mem. op., not designated for publication)
    (striking Anders brief with “no analysis or explanation of . . . the sufficiency of the evidence, the admissibility of the
    evidence . . . or whether Appellant received ineffective assistance of counsel at trial”); Williams v. State, 
    976 S.W.2d 871
    , 873 (Tex. App.—Corpus Christi 1998, order) (per curiam) (striking Anders brief that contained no “citations to
    any legal authority other than Anders”); Jeffery v. State, 
    903 S.W.2d 776
    , 779 (Tex. App.—Dallas 1995, order) (“The
    brief appellate counsel filed in this case does not meet the requirements of Anders. The brief simply summarizes the
    evidence and then concludes that the appeal is frivolous.”) (case history has been omitted for brevity).
    -6-
    04-18-00475-CV
    with the guidance other courts have published to ensure compliance with the uniform Anders
    briefing requirements. 5
    We conclude the Texas courts, including this court, that have discussed the uniform Anders
    briefing requirements have meant exactly what they have said: an Anders brief must “contain” a
    “professional evaluation” of the record “demonstrating why” with “legal analysis” there are no
    arguable grounds to be advanced. See, e.g., 
    High, 573 S.W.2d at 812
    ; 
    Nichols, 954 S.W.2d at 85
    .
    The contents of a brief in a termination appeal must refer the court to anything in the record that
    might possibly support the appeal with specific page references to the record and citations to legal
    authority. If, after a conscientious examination of the record, counsel determines the appeal is
    frivolous and without merit and cannot advance any arguable grounds of error, then the brief must
    contain a professional evaluation of the record (again, with specific references to the record and
    citations to authority relating to that legal issue) demonstrating why counsel has concluded the
    issue is frivolous. This further demonstrates that counsel has conscientiously reviewed the record
    and allows the indigent parent to understand and evaluate — without the assistance of a lawyer —
    counsel’s position and to decide whether to file a pro se brief. See 
    Anders, 386 U.S. at 742-45
    ;
    
    P.M., 520 S.W.3d at 27
    & nn. 9–10, 14; 
    D.A.S., 973 S.W.2d at 297
    , 299; 
    Schulman, 252 S.W.3d at 406
    & n.9; 
    Stafford, 813 S.W.2d at 510
    ; 
    High, 573 S.W.2d at 812
    –13; 
    Nichols, 954 S.W.2d at 85
    ; LAFAVE, at § 11.2(c); see also supra nn. 3–4 and accompanying text.
    5
    Those courts’ guidelines can be found online. See U.S. Court of Appeals for the Fifth Circuit, Anders Guidelines,
    www.ca5.uscourts.gov/docs/default-source/forms-and-documents---clerks-office/forms-and-samples/andersguidelin
    es.pdf (requiring Anders briefs to include a “discussion” of a specific list of the significant parts of a criminal case);
    First & Fourteenth Courts of Appeals of Texas, Anders Guidelines, http://www.txcourts.gov/media/1436342/anders-
    guidelines.pdf (requiring Anders briefs, depending on the nature of the case, to address up to nine specific aspects of
    a criminal trial); Thirteenth Court of Appeals of Texas, Anders Guidelines, http://www.txcourts.gov/13thcoa/ practice-
    before-the-court/anders-guidelines (same, but requiring briefs to “expressly address” up to twelve issues).
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    04-18-00475-CV
    B. Application
    With these principles in mind, we turn to considering counsel’s brief in this case. Again,
    counsel’s motion does not argue that this court’s September 21, 2018 order was legally incorrect.
    Counsel also does not argue—or even assert—that his brief satisfies the uniform Anders briefing
    requirements. Contrary to Rule 38.1(i), the brief does not contain an “Argument” section. See TEX.
    R. APP. P. 38.1(i); 
    E.L.Y., 69 S.W.3d at 842
    . Instead, immediately before the “Conclusion and
    Prayer” section, the brief contains a less-than-one-and-a-half-page “Summary of the Argument
    Regarding Anders Findings” section:
    Summary of Argument Regarding Anders Finding
    “In determining whether an appeal is frivolous, a judge may consider whether
    the appellant has presented a substantial issue for appellate review.” TEX. CIV.
    PRAC. & REM. CODE, Section 13.003(b) (Vernon 2015). It is well established
    that “a proceeding is ‘frivolous’ when it ‘lacks an arguable basis either in law or in
    fact.’” De La Vega v. Taco Cabana, Inc., 
    974 S.W.2d 152
    , 154 (Tex. App.–San
    Antonio 1998, no pet.) (quoting Neitzke v. Williams, 
    490 U.S. 319
    , 325, 
    109 S. Ct. 1827
    , 1831-32 (1989)). Appellant's Counsel has reviewed the record and finds that
    the evidence adduced at trial is sufficient to satisfy the court’s findings. Further,
    Appellant’s attorney was unable to find any reversible error in the record, or that
    the evidence was legally or factually insufficient to justify asserting any ground on
    appeal regarding that termination of Appellant's parental rights was not in the best
    interest of the children, as set forth in the Order for Termination.
    Counsel for Appellant, after thorough examination, can find no errors
    warranting reversal that can be legitimately supported by the record. In Anders v.
    California, 
    386 U.S. 738
    , 741-44, 
    87 S. Ct. 1396
    , 
    18 L. Ed. 2d 493
    (1967), the United
    States Supreme Court held that a court-appointed defense attorney in a criminal
    case who determines, after fully examining the record, that an appeal is frivolous
    must so advise the appellate court and then set forth any potential points of error
    and applicable law that might arguably support the appellant's position. The Court
    must then conduct “a full examination” of the record and determine independently
    whether the case is “wholly frivolous.” Penson v. Ohio, 
    488 U.S. 75
    , 80, 
    109 S. Ct. 346
    , 
    102 L. Ed. 2d 300
    (1988). This same standard applies to court appointed
    counsel in appeals from termination of parental rights. In re K.M., 
    98 S.W.3d 774
    ,
    777 (Tex. App–Fort Worth 2003, no pet.) (“We hold that the Anders procedures
    apply to termination of parental rights appeals like this one when court appointed
    counsel has concluded that there are no non-frivolous issues for appeal”).
    Appellant’s attorney has diligently reviewed the record and cannot find any point
    of error upon which a non-frivolous appeal might be based.
    -8-
    04-18-00475-CV
    (emphasis added). This section of the brief is identical—word for word—to the Anders briefs that
    counsel filed in the fifteen cases he cites. Because there is no “Argument” section, this section of
    the brief is critical, and nothing in this section is specific to appellant’s case. Counsel’s conclusory
    statements and typographical error in this critical section of the brief raise serious questions about
    whether counsel has “conscientiously examined” this record, in which a jury and not the court,
    was the factfinder. See 
    Nichols, 954 S.W.2d at 85
    ; see also McMullen v. State, Nos. 05-15-01284-
    CR & 05-15-01285-CR, 
    2016 WL 6124131
    , at *1 (Tex. App.—Dallas Oct. 20, 2016, order) (mem.
    op., not designated for publication) (striking Anders brief in part because counsel used the wrong
    name for appellant, which weighed against concluding counsel had provided a professional
    evaluation of the record).
    We agree that the brief describes the evidence at trial in detail, but this is insufficient. See
    
    High, 573 S.W.2d at 813
    (requiring some discussion of objections); 
    Jeffery, 903 S.W.2d at 779
    –
    80 (striking Anders brief that “simply summarize[d] the evidence and then conclude[d] that the
    appeal is frivolous”); 
    Johnson, 885 S.W.2d at 648
    (rejecting Anders brief with thorough
    description of evidence); 
    Loggins, 701 S.W.2d at 52
    –53 (same). Appellant was also present at trial
    and is presumptively aware of what transpired. The Anders brief does little, if anything, to assist
    appellant in determining whether to file a pro se brief. And the brief does not discuss or even
    mention the key parts of the jury trial that occurred in this case—such as jury selection, the jury
    charge, and/or the charge conference—and does not discuss generally or specifically the
    numerous, overruled evidentiary objections at trial or the adequacy of appellant’s legal
    representation at trial. See 
    High, 573 S.W.2d at 813
    ; Hung 
    Le, 510 S.W.3d at 99
    .
    We hold counsel’s Anders brief does not satisfy the uniform Anders briefing requirements
    because it does not contain a professional evaluation of the record demonstrating why there are no
    arguable grounds to be advanced. See 
    High, 573 S.W.2d at 812
    . Although counsel’s brief refers
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    04-18-00475-CV
    the court to a sufficiency of the evidence issue that might possibly support the appeal, the
    substantive section of the brief contains no citations to the record and authority relevant to that
    legal issue. See 
    Johnson, 885 S.W.2d at 648
    (“[A]lthough more than sufficient in the discussion
    of the sufficiency of the evidence, the brief fails to present an adequate ‘professional evaluation’
    of the record . . . .”). Counsel’s brief contends in the “Summary of the Argument” section that the
    appeal is wholly frivolous, but the brief does not contain any “legal analysis” or “a clear and
    concise argument for the contention[] made, with appropriate citations to authorities and to the
    record.” See TEX. R. APP. P. 38.1(i) (emphasis added); 
    E.L.Y., 69 S.W.3d at 842
    ; see also 
    Nichols, 954 S.W.2d at 85
    . Consequently, counsel’s brief does not explain why counsel has concluded the
    issue is frivolous in a way that assures this court that counsel has conscientiously reviewed the
    record and, equally important, in a way that allows appellant—without the assistance of a lawyer—
    to understand why her lawyer is not advocating on her behalf, to evaluate counsel’s position, and
    to have a starting point to decide whether to file a pro se brief. See 
    Anders, 386 U.S. at 742-45
    ;
    
    P.M., 520 S.W.3d at 27
    & nn. 9–10, 14; 
    D.A.S., 973 S.W.2d at 297
    , 299; 
    Schulman, 252 S.W.3d at 406
    & n.9; 
    Stafford, 813 S.W.2d at 510
    ; 
    High, 573 S.W.2d at 812
    –13; 
    Nichols, 954 S.W.2d at 85
    ; LAFAVE, at § 11.2(c); see also supra nn. 3–4 and accompanying text.
    CONCLUSION
    Counsel’s brief contains bare, conclusory statements and fails to satisfy the uniform
    requirements for Anders briefs. We express no opinion as to whether there is, or is not, a potentially
    meritorious issue in this record; determining whether the form of an Anders brief is sufficient is
    an inquiry that is legally distinct from determining whether, in substance, counsel has correctly
    concluded the appeal is wholly frivolous. See 
    Echeta, 510 S.W.3d at 105
    ; Hung Le v. State, 510
    - 10 -
    04-18-00475-CV
    S.W.3d at 100. We deny counsel’s request for relief from our September 21, 2018 order and order
    counsel to file the redrawn brief within ten days.
    Luz Elena D. Chapa, Justice
    - 11 -