in the Interest of KRH-B, a Child

IN THE
TENTH COURT OF APPEALS
No. 10-20-00269-CV
IN THE INTEREST OF KRH-B, A CHILD
From the 220th District Court
Hamilton County, Texas
Trial Court No. FM06819
OPINION
Charles Blake appeals from a judgment that established paternity to his child,
KRH-B, in a proceeding filed by the Office of the Attorney General under Chapter 231 of
the Texas Family Code. See, generally, TEX. FAM. CODE ANN. Ch. 231. Blake, who is
incarcerated and indigent, was appointed counsel on appeal pursuant to Family Code
Section 107.021 to assist with various difficulties with prosecuting his appeal of the
judgment. See TEX. FAM. CODE ANN. § 107.021.
Blake's court-appointed appellate counsel filed a motion to withdraw and a brief
in support of his motion pursuant to Anders v. California. See Anders v. California, 386 U.S.
738, 87 S. Ct. 1396, 18 L. Ed. 2d 493 (1967). In support of his motion to withdraw, counsel
certified that he conducted a conscientious examination of the record and determined
that, in his opinion, the record reflects no potentially plausible basis to support an appeal.
Counsel certified that he diligently researched the law applicable to the facts and issues
and candidly discussed why, in his professional opinion, the appeal is frivolous. In re
D.A.S., 973 S.W.2d 296, 297 (Tex. 1998). Counsel has demonstrated he has complied with
the requirements of Anders by (1) providing a copy of the brief and the record to Blake
and (2) notifying him of his right to file a pro se response if he desired to do so. Id. This
Court also advised Blake of his right to file a pro se response; however, Blake did not file
a response to the Anders brief. The brief meets the requirements of Anders. However,
before we can address whether the appeal is without merit, we must first decide whether
the procedure outlined in Anders is appropriate in this appeal. We conclude that it is.
Under Anders, appointed appellate counsel must "master the trial record,
thoroughly research the law, and exercise judgment in identifying the arguments that
may be advanced on appeal." McCoy v. Court of Appeals, 486 U.S. 429, 438, 108 S. Ct. 1895,
100 L. Ed. 2d 440 (1988); see also Anders, 386 U.S. at 744-45. "If, after a conscientious review
of the record, counsel concludes that the case is wholly frivolous, he or she may so advise
the court of appeals and request permission to withdraw." In re D.A.S., 973 S.W.2d at 297;
Anders, 386 U.S. at 744. However, a request to withdraw must be accompanied by a brief
referring to anything in the record that might arguably support the appeal. Anders, 386
U.S. at 744. A copy of the brief must be furnished to the indigent client, and the court
In the Interest of KRH-B, a Child Page 2
must allot the client time to raise any issues he or she chooses. Id. After appointed counsel
files the Anders brief, the appellate court must conduct a full examination of all
proceedings to decide whether the appeal is wholly frivolous. Id; see also In re G.P., 503
S.W.3d 531, 536 (Tex. App.—Waco 2016, pet. denied). If the court concludes the appeal
is frivolous, it may grant appellate counsel's motion to withdraw. 1 Id. However, if the
court finds any of the legal issues arguable on their merits, and therefore not wholly
frivolous, it must abate the appeal and remand the proceeding to the trial court for the
appointment of substitute counsel. Id.Anders has been applied to civil cases in various arenas for some time. See In re
D.A.S., 973 S.W.2d at 299 (applying Anders in context of civil juvenile delinquency
adjudication); In re Guardianship of Hahn, 276 S.W.3d 515, 518 (Tex. App.—San Antonio
2008, no pet.) (adopting Anders procedure in probate appeal); State of Tex. ex rel. Best Int.
& Prot. of L.E.H., 228 S.W.3d 219, 220 (Tex. App.—San Antonio 2007, no pet.) (applying
Anders in context of temporary mental health services involuntary commitment); In re
R.R., No. 04-03-00096-CV, 2003 Tex. App. LEXIS 4283, 2003 WL 21157944, at *4 (Tex.
1 This process is distinguished from appeals from terminations of parental rights, where counsel is
appointed pursuant to Family Code Section 107.013. In those proceedings, a motion to withdraw is not
appropriate absent good cause outside of the filing of the Anders brief because Family Code Section 107.016
requires counsel appointed pursuant to Section 107.013 to continue representation until all appeals are
exhausted, which has been construed to include the filing of a petition for review with the Texas Supreme
Court. See TEX. FAM. CODE ANN. § 107.016; In re P.M., 520 S.W.3d 24, 27 (Tex. 2016) (per curiam). Section
107.016 does not refer to appointments pursuant to Section 107.021, therefore, we find that the motion to
withdraw pursuant to Anders is the proper mechanism for counsel to use to bring the appointment to a
conclusion.
In the Interest of KRH-B, a Child Page 3
App.—San Antonio May 21, 2003, no pet.) (applying Anders in context of termination of
indigent parent's parental rights). We recognize that in In re D.A.S., the Texas Supreme
Court cautioned that its opinion was "not intended to extend Anders to all cases in which
the Legislature provides the right to counsel on appeal." In re D.A.S., 973 S.W.2d at 298.
This proceeding is somewhat unique in that counsel was appointed to represent
Blake during the middle of the appellate process due to various procedural issues with
prosecuting the appeal. In the interest of justice and attempting to balance the due process
rights of each of the parents and the child, this Court sought the appointment of counsel
to aid Blake in prosecuting the appeal pursuant to Family Code Section 107.021. 2 The trial
court did appoint counsel, and that counsel did undertake the representation of Blake. In
his review of the proceedings, his appointed counsel determined that there were no
meritorious issues that he could raise with this Court, and therefore he filed the motion
to withdraw accompanied by the Anders brief in support.
We recognize that all attorneys, including those appointed to represent a person
who is appealing a judgment, are ethically bound to not file a frivolous pleading. TEX.
DISCIPLINARY RULES. PROF'L CONDUCT R. 3.01, reprinted in TEX. GOV'T CODE ANN., tit. 2,
subtit. G, app. A (Tex. State Bar R. art. X, § 9). We conclude that appointed counsel's use
of the Anders procedure in this proceeding was proper to provide a procedural
2This appeal has been made even more complicated because the location of the mother of the child is
unknown. The trial court clerk's notice of the entry of the final judgment was returned to the trial court and
could not be forwarded because the addressee was unknown.
In the Interest of KRH-B, a Child Page 4
mechanism for appointed counsel to fulfill his ethical obligations not to file a frivolous
document and to assist this Court in being able to decide this appeal.
Counsel's brief discusses the facts, procedural history, and the sufficiency of the
evidence relating to potential issues and why those issues are not meritorious. This
includes issues raised by Blake to the trial court throughout the pendency of the
proceedings before the trial court, including his desire to personally appear in the
proceedings and repeated requests for the appointment of counsel prior to the entry of
the final judgment. We conclude that counsel's brief contains a professional evaluation of
the record, and we conclude that counsel performed the duties required of appointed
counsel. See Anders, 386 U.S. at 744.
Having carefully reviewed the entire record and the Anders brief, we have
determined that this appeal is frivolous. See In re G.P., 503 S.W.3d 531, 536 (Tex. App.—
Waco 2016, pet. denied). Accordingly, we affirm the trial court's judgment and grant
counsel's motion to withdraw. Within five days of the date of this Court's opinion,
counsel is ordered to: (1) send a copy of the opinion and judgment to Blake; (2) advise
Blake of his right to pursue a petition for review in the Texas Supreme Court; and (3)
notify this Court of counsel's compliance when he has done so. See In re K.D., 127 S.W.3d
66, 68 n.3 (Tex. App.—Houston [1st Dist.] 2003, no pet.).
TOM GRAY
Chief Justice
In the Interest of KRH-B, a Child Page 5
Before Chief Justice Gray,
Justice Johnson, and
Justice Smith
Affirmed
Opinion delivered and filed April 27, 2022
[CV06]
In the Interest of KRH-B, a Child Page 6