in the Matter of A.H., a Juvenile ( 2017 )

COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 02-16-00320-CV
IN THE MATTER OF A.H., A
JUVENILE
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FROM THE 323RD DISTRICT COURT OF TARRANT COUNTY
TRIAL COURT NO. 323-103486-16
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OPINION
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This is an appeal from a juvenile court’s order committing appellant A.H. to
the custody of the Texas Juvenile Justice Department after previously
adjudicating him delinquent for committing the felony offense of assault on a
public servant. See Tex. Fam. Code Ann. § 54.03 (West 2014), § 54.04 (West
Supp. 2016); Tex. Penal Code Ann. § 22.01(a)(1), (b)(1) (West Supp. 2016).
Appellant’s court-appointed appellate counsel has filed a motion to
withdraw and a brief in support of that motion, in which he states that he has
reviewed the record and believes the appeal is frivolous. Counsel’s brief and
motion meet the requirements of Anders v. California by presenting a
professional evaluation of the record demonstrating why there are no arguable
grounds for relief. See 386 U.S. 738, 87 S. Ct. 1396 (1967); In re D.A.S., 973
S.W.2d 296, 299 (Tex. 1998) (orig. proceeding) (holding that Anders procedures
apply to juvenile appeals).
Appellate counsel notified appellant’s mother by mail of the right to file a
pro se response to counsel’s Anders brief, and this court further notified both
appellant and his mother by mail of the right to file a response to counsel’s
Anders brief. We have not received any response. The State declined to file a
brief.
Once an appellant’s court-appointed attorney files a motion to withdraw on
the ground that the appeal is frivolous and fulfills the requirements of Anders, this
court is obligated to undertake an independent examination of the record. See
Stafford v. State, 813 S.W.2d 503, 511 (Tex. Crim. App. 1991); Mays v. State,
904 S.W.2d 920, 922–23 (Tex. App.––Fort Worth 1995, no pet.). When
analyzing whether any grounds for appeal exist, we consider the record, the
Anders brief and any pro se response. In re Schulman, 252 S.W.3d 403, 408–09
(Tex. Crim. App. 2008) (orig. proceeding).
We have carefully reviewed counsel’s brief and the appellate record.
Finding no reversible error, we agree with counsel that this appeal is without
merit. See In re K.C., No. 2-09-150-CV, 2010 WL 323532, at *1 (Tex. App.––
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Fort Worth Jan. 28, 2010, no pet.) (mem. op.). Therefore, we affirm the trial
court’s order of commitment.
Ordinarily, upon finding that the appeal is frivolous, we would grant
counsel’s motion to withdraw. But in In re P.M., a termination of parental rights
appeal, our supreme court held––in reliance on family code section 107.013
providing that appointed counsel continues to serve in that capacity until the date
all appeals are exhausted or waived––that the mere filing of an Anders brief in
the court of appeals does not warrant the withdrawal of that counsel for purposes
of proceeding in the supreme court. No. 15-0171, 2016 WL 1274748, at *3 (Tex.
Apr. 1, 2016) (order). The Juvenile Justice Code contains a similar provision:
when, as in this case, the trial court finds a child’s family indigent and appoints
counsel, that counsel must continue to represent the child “until the case is
terminated, the family retains an attorney, or a new attorney is appointed by the
juvenile court.” Tex. Fam. Code Ann. § 51.101 (West Supp. 2016) (emphasis
added). The record does not show that either of the latter two events have
occurred here, and under the reasoning of In re P.M., this case has not
“terminated” because not all appeals have been exhausted. See 2016 WL
1274748, at *2 & n.5, *3. Accordingly, even though we have affirmed the trial
court’s judgment, we nevertheless deny counsel’s motion to withdraw. See id. at
*3; In re A.C., Nos. 01-15-00931-CV, 01-15-00932-CV, 01-15-00933-CV, 2016
WL 1658777, at *1 (Tex. App.––Houston [1st Dist.] Apr. 26, 2016, no pet.) (mem.
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op.) (citing P.M. in denying counsel’s motion to withdraw in frivolous juvenile
appeal).
/s/ Terrie Livingston
TERRIE LIVINGSTON
CHIEF JUSTICE
PANEL: LIVINGSTON, C.J.; MEIER and GABRIEL, JJ.
DELIVERED: April 27, 2017
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