Opinion issued August 28, 2014
In The
Court of Appeals
For The
First District of Texas
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NO. 01-14-00245-CV
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IN THE INTEREST OF S.D., A CHILD
On Appeal from the 314th District Court
Harris County, Texas
Trial Court Case No. 2013-01028J
MEMORANDUM OPINION
This is a parental termination case. The trial court terminated the mother’s
parental rights to her child, S.D. The mother’s court-appointed appellate counsel
has filed a motion to withdraw along with an Anders brief stating his professional
opinion that the appeal is without merit and that there are no arguable grounds for
reversal. Anders v. California, 386 U.S. 738, 87 S. Ct. 1396 (1967). The
procedures set forth in Anders are applicable to an appeal of the termination of
parental rights when an appointed attorney concludes that there are no nonfrivolous
issues to assert on appeal. See In re K.D., 127 S.W.3d 66, 67 (Tex. App.—Houston
[1st Dist.] 2003, no pet.). We affirm the trial court’s judgment and grant counsel’s
motion to withdraw.
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 the mother and informed her of her right to
examine the appellate record and to file a response. See id. at 408.
The brief submitted by the mother’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. at 744, 87 S. Ct. at 1400; Schulman, 252 S.W.3d at
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407–008. This Court notified the mother of her right to review the record and to
file a pro se response. She did not file a response.
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. See 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.) (mem. op.); 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. See Johnson, 2010 WL 5186806, at *1. If we determine that arguable
grounds for appeal exist, we will abate the appeal and remand the case to the trial
court to allow the appointed attorney to withdraw. See id. at *2. Then, the trial
court will appoint 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. (quoting Bledsoe v. State, 178 S.W.3d 824, 827 (Tex.
Crim. App. 2005)).
However, 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
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reversible error. Id. 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, 766 (Tex. Crim. App. 2009). An appellant may challenge the holding that
there are no arguable grounds for appeal by petitioning for review in the Supreme
Court of Texas. See Johnson, 2010 WL 5186806, at *2.
Following Anders, we have reviewed the record and counsel’s Anders brief.
We conclude that no reversible error exists. Accordingly, we affirm the judgment
of the trial court and grant counsel’s motion to withdraw. * Attorney William M.
Thursland must immediately send the notice required by Texas Rule of Appellate
Procedure 6.5(c) 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 Justices Massengale, Brown, and Huddle.
*
Appointed counsel still has a duty to inform the mother of the result of this
appeal and notify her that she may, on her own, pursue a petition for review
in the Supreme Court of Texas. See In re K.D., 127 S.W.3d 66, 68 n.3 (Tex.
App.—Houston [1st Dist.] 2003, no pet.).
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in the Interest of S. D., a Child
Combined Opinion