in the Interest of I. T. S., a Child ( 2013 )

Opinion issued November 26, 2013.
In The
Court of Appeals
For The
First District of Texas
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NO. 01-13-00566-CV
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IN THE INTEREST OF I.T.S., A CHILD
On Appeal from the 313th District Court
Harris County, Texas
Trial Court Cause No. 2012-01859J
MEMORANDUM OPINION
The trial court terminated appellant A.D.H.’s parental rights to I.T.S., her
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 id. 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.; 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. Bledsoe v. State, 178 S.W.3d 824, 826–27 (Tex. Crim. App. 2005).
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. at 827. 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. at 826–27. 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, 765 (Tex. Crim. App. 2009). Appellant
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may challenge the holding that there are no arguable grounds for appeal by
petitioning for review in the Supreme Court of Texas. See Bledsoe, 178 S.W.3d 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) to appellant 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 Chief Justice Radack and Justices Bland and Huddle.
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 66, 68 n.3 (Tex.
App.—Houston [1st Dist.] 2003, no pet.).
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