in the Interest of D.A.C., a Child

NO. 07-09-0108-CV

IN THE COURT OF APPEALS

FOR THE SEVENTH DISTRICT OF TEXAS

AT AMARILLO

PANEL B

JUNE 29, 2009

______________________________

IN THE INTEREST OF D.A.C.,

                                                                                      A Child

_________________________________

FROM THE 31^ST DISTRICT COURT OF WHEELER COUNTY;

NO. 12,093; HON. STEVEN RAY EMMERT, PRESIDING

_______________________________

Abatement and Remand

_______________________________

Before QUINN, C.J., and CAMPBELL and HANCOCK, JJ.

          Appellant, Jennifer Carpenter, appeals from the termination of her parental rights to her minor child, D.A.C. Her appointed counsel has filed a motion to withdraw, together with an Anders brief, wherein he “finds no error in the record and urges this Court allow him to withdraw as Appellant’s attorney.” On June 22, 2009, counsel for the Texas Department of Family and Protective Services filed a response to the Anders brief contending, among other things, that appellant’s counsel failed to address the nine issues for appeal raised in appellant’s statement of points on appeal.

          We, too, find the brief to be deficient not only by failing to follow the procedural requirements pursuant to Anders v. California, 386 U.S. 738, 744-45, 87 S. Ct. 1396, 18 L. Ed. 2d 492 (1967), but by failing to address the issues raised by appellant in her statement of points. While we make no comment upon their ultimate merit, they nonetheless pose arguable issues for appellate review. Thus, we do not accept appellate counsel’s representation concerning the merits of the appeal. 

          Counsel’s representation also poses another problem. In his uttering, via a public record, that the appeal was meritless, one can reasonably question whether a conflict of interest has arisen between counsel and client. So too could it be reasonably questioned whether by making the statement, Carpenter’s current attorney can zealously represent her if allowed to remain her attorney of record.

          Accordingly, we abate the appeal and remand the cause to the 31^st District Court of Wheeler County, Texas. Upon remand, the trial court shall remove appellant’s current attorney and appoint another to represent her in this appeal. The trial court shall further order the newly appointed counsel to file an appellant’s brief, as per the Texas Rules of Appellate Procedure, developing the aforementioned arguable grounds, and all other grounds that might support reversal or modification of the judgment. Should new counsel determine, after a thorough review of the appellate record, that the appeal is indeed frivolous, he may opt to file an Anders brief; however, he must comport with the requirements specified in In re Schulman, 252 S.W.3d 403 (Tex. Crim. App. 2008) and In re J.B., __ S.W.3d ___, 2009 WL 283197 (Tex. App.–El Paso February 5, 2009, no pet. h.) before doing so.

          The deadline for filing an appellant’s brief with the clerk of this appellate court is extended to August 10, 2009, unless further extended by this court. Any responding brief which the Department may care to submit shall be filed within 30 days thereafter. Finally, the trial court is further directed to inform this court, in writing, of the name, address, and state bar number of Carpenter’s newly appointed counsel by July 10, 2009.

          It is so ordered.

 

                                                                                      Per Curiam

 

 

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NO. 07-09-0383-CV

 

IN THE COURT OF APPEALS

 

FOR THE SEVENTH DISTRICT OF TEXAS

 

AT AMARILLO

 

PANEL A

 

FEBRUARY 9, 2010

 

__________________________

 

THE STATE OF TEXAS, APPELLANT

 

V.

 

FORTY-TWO (42) GAMBLING DEVICES, AND THIRTY-SEVEN THOUSAND

EIGHTY-ONE DOLLARS AND EIGHTY-NINE CENTS ($37,081.99) IN

UNITED STATES CURRENCY, APPELLEE

__________________________

 

FROM THE 181^ST DISTRICT COURT OF POTTER COUNTY;

 

NO. 89-859-B; HONORABLE BRYAN POFF, JR., JUDGE

____________________________

 

 

Before CAMPBELL and HANCOCK and PIRTLE, JJ.

 

 

ORDER

 

 

Appellee Merri Lewis as executor of the estate of Mike Lewis filed a motion entitled “T.R.A.P. Rule 24 Motion to Unsuspend Enforcement of Trial Court Order.”  According to a certificate of conference attached to the motion, the State opposed the requested relief.  We held the motion for ten days but the State filed no response.  See Tex. R. App. 10.3(a) & 10.1(b).

            This appeal is brought by the State.  The record on the State’s appeal has not been filed so we look to Lewis’s motion and attached exhibits for the factual background surrounding the motion.  In the trial court, the State sought forfeiture of seized personal property and money under Article 18.18 of the Code of Criminal Procedure.  See Tex. Code Crim. Proc. Ann. art. 18.18 (Vernon Supp. 2009).  In one document, the trial court dismissed the State’s case for want of prosecution and ordered delivery of the seized property to Lewis.  The State gave written notification to the sheriff that release of the property would be premature because of its appeal of the order.  The State subsequently filed a motion to reconsider and notice of appeal.

            By the motion, Lewis asks us to “determine that the Trial Court Order was never effectively suspended and order it complied with, or, alternatively, order that the Trial Court order be unsuspended so that it can be enforced to place the parties in this appeal in the posture that equity dictates.”

            By her motion Lewis attempts to invoke Rule of Appellate Procedure 24.  Rule 24.4 permits a party to the appeal to seek review of a trial court’s ruling on supersedeas issues. Tex. R. App. P. 24.4(a).[1] But the limited record Lewis presents does not include a trial court order concerning supersedeas of the judgment, or otherwise demonstrate the trial court has taken any action subject to our review under Rule 24.  Rather, the record shows the trial court ordered delivery to Lewis of property the State seized.[2]  Issues of the effect of the State’s appeal of the trial court’s order on possession of the seized items have not been presented to the trial court. 

Accordingly, we dismiss Lewis’s motion.

It is so ordered.

 

Per Curiam

 

 

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[1] Rule 24.4 lists the following as trial court rulings subject to review:  (1) the sufficiency or excessiveness of the amount of security; (2) the sureties on a bond; (3) the type of security; (4) the determination whether to permit suspension of enforcement; and (5) the trial court’s exercise of discretion concerning the amount and type of security, the sufficiency of sureties, and modification of security if circumstances change.  Tex. R. App. P. 24.4(a).

 

[2] Lewis also cites Rule 24.2(5) as a basis for our authority.  But this rule concerns suspension of enforcement of a judgment in favor of a governmental entity in its governmental capacity.  Tex. R. App. P. 24.2(5).  Here, the State appeals dismissal of its case for want of prosecution.