In the Matter of J.H.D., a Juvenile v. the State of Texas

Abated and Opinion Filed March 22, 2023
S In The
Court of Appeals
Fifth District of Texas at Dallas
No. 05-22-00664-CV
IN THE MATTER OF J.H.D., A JUVENILE
On Appeal from the 417th Judicial District Court
Collin County, Texas
Trial Court Cause No. 417-70487-2019
MEMORANDUM OPINION
Before Justices Reichek, Nowell, and Garcia
Opinion by Justice Garcia
Appellant J.H.D. appeals from orders that modify a prior disposition of his
juvenile-delinquency case and require him to register as a sex offender. His court-
appointed appellate counsel has filed an Anders1 brief and moved to withdraw. We
grant the motion to withdraw but strike the Anders brief and remand the case for
appointment of new appellate counsel.
1
Anders v. California, 386 U.S. 738, 744 (1967).
I. BACKGROUND
In July 2019, the State filed a petition seeking a finding that appellant had
engaged in delinquent conduct and other relief. An attorney was appointed to
represent him in the matter. Appellant pleaded true to indecency with a child by
contact. After a hearing, the trial judge signed a judgment finding that appellant had
committed indecency with a child by contact and signed a disposition order placing
him on probation for two years. Appellant’s attorney in this first stage of the case
did not represent him in subsequent stages until she was appointed to represent him
in this appeal.
In November 2020, the State filed a First Motion to Modify Disposition
alleging that appellant had violated the terms of his probation. A different attorney
filed a letter stating that she had been retained to represent appellant in that matter.
At the hearing of the motion, appellant pleaded true to the allegations in the motion.
The trial judge then signed an Agreed Order Modifying Disposition finding that
appellant had violated the terms of his probation and continuing his probation until
January 2023. The judge ordered appellant to report to Rockdale Youth Academy
and remain there for up to 12 months.
In January 2022, the State filed a Second Motion to Modify Disposition and
a Motion to Enter Judgment for Sex Offender Registration After Prior Deferral. The
State alleged that appellant had committed multiple probation violations, and it
requested several alternative forms of relief including commitment to the Texas
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Juvenile Justice Department. The trial court appointed a new attorney to represent
appellant in this proceeding.
At the hearing of the State’s motions, appellant pleaded true to the allegations.
After the hearing, the trial judge signed a TJJD Disposition Order that terminated
appellant’s probation and committed him to the Texas Juvenile Justice Department
for an indeterminate period of time not to exceed his nineteenth birthday. The judge
signed a separate order requiring appellant to register as a sex offender as required
by Texas Code of Criminal Procedure Chapter 62.
Appellant timely appealed. The trial court appointed as his appellate counsel
the same attorney who had represented appellant in connection with the State’s
original petition and the original plea in 2019.
Appellant’s appellate counsel filed a motion to withdraw and an Anders brief.
In her motion to withdraw, counsel notified appellant of his rights to examine the
appellate record and file a responsive brief. She also averred that a copy of the
motion was delivered to appellant. Additionally, this Court sent a copy of the Anders
brief to appellant’s guardian and advised her of her right to review the appellate
record and file a pro se response. We have not received a response.
II. ANALYSIS AND DISPOSITION
In Anders, the Supreme Court outlined a procedure to ensure that an indigent
criminal defendant’s right to counsel on appeal is honored when his or her appointed
attorney concludes that the appeal is without merit. See English v. State, No. 05-20-
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01105-CR, 2021 WL 5002425, at *1 (Tex. App.—Dallas Oct. 28, 2021, order)
(mem. op., not designated for publication), disp. on merits, 2022 WL 2980707 (Tex.
App.—Dallas July 28, 2022, no pet.) (mem. op., not designated for publication). If
the attorney concludes that the appeal is wholly frivolous, he or she should request
permission to withdraw, simultaneously filing a brief that refers to anything in the
record that might arguably support the appeal. Id. The Anders brief must satisfy the
appellate court that the appointed attorney’s motion to withdraw is based on a
conscientious and thorough review of both the record and the law. Id. The Anders
procedure also applies to juvenile cases. In re T.M., 583 S.W.3d 836, 837 (Tex.
App.—Dallas 2019, no pet.).
We have held that it is not appropriate for appointed counsel to file an Anders
brief if counsel also served as appellant’s trial counsel. Chandler v. State, 988
S.W.2d 827, 828 (Tex. App.—Dallas 1999, order), disp. on merits, No. 05-97-
00773-CR, 2000 WL 1048495 (Tex. App.—Dallas July 31, 2000, no pet.) (not
designated for publication). There are two reasons for this rule: (1) appellate counsel
may be biased or prejudiced when evaluating his or her own performance at trial,
and (2) counsel who erred during the trial phase of the case may not recognize the
error on appeal. Id. If trial counsel is appointed to serve as appellate counsel and
comes to believe that the appeal is frivolous, he or she should move to withdraw
without filing an Anders brief so that new appellate counsel can be appointed. Id.–4–
In this case, appointed appellate counsel served as appellant’s trial counsel
during the initial disposition proceedings in the trial court, but she did not serve as
trial counsel during the modification proceeding that led to issuance of the order now
before us on appeal. Nevertheless, fundamental error could have occurred while
counsel served as appellant’s trial counsel and could be raised in this appeal. See In
re X.B., 369 S.W.3d 350, 353–55 (Tex. App.—Texarkana 2012, no pet.) (reversing
juvenile adjudication judgment for lack of jurisdiction in context of appeal from
subsequent modification order). Thus, the policy concerns underlying the Chandler
rule apply in this context, and we conclude that the rule applies.
Accordingly, we strike the Anders brief filed by appellate counsel, grant
counsel’s motion to withdraw, abate the appeal, remand the case to the trial court,
and order the trial court to appoint new appellate counsel to represent appellant. New
appellate counsel should investigate the record and file either a brief that addresses
arguable issues found in the record or an Anders brief that complies with the
requirements of Anders and its progeny.
/Dennise Garcia/
DENNISE GARCIA
220664NF.P05 JUSTICE
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