in the Interest of E.M.M.M. a Child

MEMORANDUM OPINION No. 04-10-00771-CV In the INTEREST OF E.M.M.M., A Child From the 150th Judicial District Court, Bexar County, Texas Trial Court No. 2009-PA-02302 Honorable Charles E. Montemayor, Judge Presiding 1 Opinion by: Marialyn Barnard, Justice Sitting: Karen Angelini, Justice Rebecca Simmons, Justice Marialyn Barnard, Justice Delivered and Filed: April 27, 2011 MOTION TO WITHDRAW GRANTED; AFFIRMED Appellant mother, M.M., appeals the trial court’s judgment terminating her parental rights to E.M.M.M., and the order finding her statement of appellate points frivolous. See TEX. FAM. CODE ANN. § 263.405(a), (d)(3) (West 2008). Appellant’s court-appointed appellate attorney has filed a motion to withdraw and a brief containing a professional evaluation of the record demonstrating there are no arguable grounds to be advanced and concluding the appeal is frivolous. The brief meets the requirements of Anders v. California, 386 U.S. 738 (1967). See In re R.R., No. 04-03-00096-CV, 2003 WL 21157944, *4 (Tex. App.—San Antonio May 21, 2003, order) (applying Anders procedure to appeals from orders terminating parental rights), 1 The Honorable Janet Littlejohn is the presiding judge of the 150th Judicial District Court, Bexar County, Texas. However, the judgment of termination that is the subject of this appeal was signed by the Honorable Charles E. Montemayor, Associate Judge, Bexar County, Texas. 04-10-00771-CV disp. on merits, 2003 WL 22080522 (Tex. App.—San Antonio Sept. 10, 2003, no pet.) (mem. op.). However, appellant was not provided a copy of the brief and the motion to withdraw nor informed of her right to file her own brief. See Nichols v. State, 954 S.W.2d 83, 85-86 (Tex. App.—San Antonio July 23, 1997, no pet.) (holding that motion to withdraw must be accompanied by exhibit showing counsel provided appellant with copy of brief and informed appellant of right to review record and file pro se brief); In re R.R., 2003 WL 21157944, at *4. Counsel advised the court that he attempted to locate appellant to serve her with a copy of the brief and his motion to withdraw, and inform her of her right to file her own brief, but was unable to do so. More specifically, counsel advised that he spoke with appellant’s former parole officer, but was advised appellant “is no longer in their information system after having been released from prison on November 19, 2010.” Generally, an appellate court will not grant a motion to withdraw in an Anders case until: (1) the attorney has sent a copy of his Anders brief to his client along with a letter explaining the client’s right to file a pro se brief and review the record; (2) the attorney has informed the appellate court he has provided the brief and necessary information; (3) the defendant has had time to file a pro se response; and (4) the appellate court has reviewed the record, the Anders brief, and any pro se brief. In re Schulman, 252 S.W.3d 403, 408-09 (Tex. Crim. App. 2008). After the four steps are complete, the appellate court will either agree the appeal is wholly frivolous, grant the motion to withdraw, and dismiss the appeal, or it will determine there may be plausible grounds for the appeal. Id. at 409. However, a defendant who fails to keep his attorney informed of his current address forfeits the right to receive a copy of the Anders brief and the right to file a pro se brief. Id. at 408 n.21 (citing Gonzales v. State, 903 S.W.2d 404, 405 (Tex. App.—Texarkana 1995, no pet.)). -2- 04-10-00771-CV In this case, appellant has failed to keep in touch with her appointed counsel and failed to advise him of her current address. She has, therefore, forfeited her right to receive a copy of the Anders brief or file a pro se brief. See id. We have reviewed the record and the Anders brief to determine if the appeal is frivolous or there are plausible grounds for the appeal. We agree with counsel that the appellate points do not present a substantial question for appellate review. See TEX. CIV. PRAC. & REM. CODE ANN. § 13.003(b) (West 2002); TEX. FAM. CODE ANN. § 263.405(d)(3) (incorporating section 13.003(b) by reference). Accordingly, we hold the trial court did not abuse its discretion in finding the statement of appellate points to be frivolous. We grant the motion to withdraw and affirm the trial court’s judgment. Marialyn Barnard, Justice -3-