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.)).
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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
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