in the Interest of N.F.M. and S.R.M.

Fourth Court of Appeals
San Antonio, Texas
OPINION

No. 04-18-00475-CV

IN THE INTEREST OF N.F.M. and S.R.M.

From the 57th Judicial District Court, Bexar County, Texas
Trial Court No. 2017PA00070
Honorable John D. Gabriel, Jr., Judge Presiding

OPINION ON MOTION FOR EN BANC RECONSIDERATION
OF ORDER STRIKING COUNSEL’S ANDERS BRIEF

Opinion by: Luz Elena D. Chapa, Justice
Dissenting Opinion by: Sandee Bryan Marion, Chief Justice, joined by Karen Angelini, Justice
and Marialyn Barnard, Justice

Sitting en banc: Sandee Bryan Marion, Chief Justice
Karen Angelini, Justice
Marialyn Barnard, Justice
Rebeca Martinez, Justice
Patricia Alvarez, Justice
Luz Elena D. Chapa, Justice
Irene Rios, Justice

Delivered and Filed: December 19, 2018

RELIEF DENIED

Pending before the court is counsel’s motion for en banc reconsideration of this court’s

order striking the brief he filed pursuant to Anders v. California, 386 U.S. 738 (1967). Sitting en

banc and considering the merits of counsel’s motion, we hold the Anders briefing requirements

that apply uniformly in criminal and juvenile appeals also apply in termination appeals. Because
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counsel’s Anders brief does not satisfy the uniform Anders briefing requirements, we deny counsel

relief from the order striking his Anders brief.

BACKGROUND

This is an appeal from an order terminating appellant’s parental rights. After a four-day

jury trial, the jury found the parent–child relationship between appellant and her children should

be terminated. 1 On July 12, 2018, the trial court signed a final order, appellant filed a notice of

appeal, and because appellant is indigent, the trial court appointed appellate counsel. After the

appellate record was filed, counsel filed an Anders brief and a motion to withdraw.

Counsel’s Anders brief was struck on September 21, 2018, because it did not contain a

professional evaluation of the record. Counsel filed a motion for en banc reconsideration of the

September 21, 2018 order. Notably, counsel does not argue that the order was legally incorrect.

Counsel does not argue that his brief satisfies the basic requirements for Anders briefs. Counsel

also does not cite any authority regarding Anders briefs or discuss the requirements of an Anders

brief. The motion’s sole contention is that, in fifteen cases dating back to 2014, this court did not

strike his Anders briefs in which the substantive portions were identical, word for word, to the

brief filed in this case. The motion asks this court to “resolve the conflict” between the September

21, 2018 order and this court’s prior decisions in those fifteen cases. We construe this motion as a

request to vacate the September 21, 2018 order.

Before addressing whether we should vacate our order, we note the cases cited by counsel

are largely distinguishable. Although one of the fifteen cases counsel cites involved a jury trial,

the fourteen more recent cases involved bench trials. Counsel’s Anders brief in this case, which

involved a jury trial, concluded this appeal is wholly frivolous because “the evidence adduced at

1
The jury answered one broad-form question that incorporated both the best-interest requirement with five alternative
grounds for termination.

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trial is sufficient to satisfy the court’s findings” (emphasis added). In bench-trial cases, this

boilerplate statement facially raises no significant concerns. But in this case, the boilerplate

statement is concerning because this case was tried to a jury. Although the dissent makes light of

this concern by characterizing this oversight as a mere typographical error, our concern is

amplified by the absence of any mention or discussion in counsel’s brief of voir dire, the charge

conference, and/or the jury charge. However, to address any apparent inconsistency, we clarify

that the uniform Anders briefing requirements that apply in criminal appeals and juvenile appeals

apply in termination appeals.

REQUIREMENTS FOR ANDERS BRIEFS IN TERMINATION APPEALS

The “involuntary termination of parental rights involves fundamental constitutional

rights.” In re G.M., 596 S.W.2d 846, 846 (Tex. 1980). To protect these fundamental constitutional

rights, the Texas Legislature has guaranteed each parent the right to counsel in a termination

proceeding brought by a governmental entity. TEX. FAM. CODE. § 107.106. If appointed appellate

counsel in a termination appeal determines an appeal is wholly frivolous, “[c]ounsel’s obligation

to the client may still be satisfied by filing an appellate brief meeting the standards set in Anders

v. California, and its progeny.” In re P.M., 520 S.W.3d 24, 27 & nn. 9–10 (Tex. 2016) (per curiam)

(citation omitted). The “progeny” to which the supreme court referred in P.M. were decisions by

Texas courts in criminal and juvenile appeals. See id. at nn. 9–10, 14. 2 Thus, when appointed

counsel determines a termination appeal is wholly frivolous, the supreme court has expressly stated

counsel should file an Anders brief, and it referred to the uniform Anders briefing requirements in

criminal and juvenile appeals. See id.

2
In those footnotes, the supreme court referred to or discussed In re D.A.S., 973 S.W.2d 296, 297, 299 (Tex. 1998) (a
juvenile case), In re Schulman, 252 S.W.3d 403, 406 n.9 (Tex. Crim. App. 2008) (orig. proceeding) (a criminal case),
and High v. State, 573 S.W.2d 807, 812–13 (Tex. Crim. App. [Panel Op.] 1978) (the seminal Texas case on Anders
briefing requirements in criminal appeals).

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A. The Uniform Anders Briefing Requirements

An Anders brief must “contain a professional evaluation of the record demonstrating why,

in effect, there are no arguable grounds to be advanced.” High v. State, 573 S.W.2d 807, 812 (Tex.

Crim. App. [Panel Op.] 1978) (cited by P.M., 520 S.W.3d at 27 n.14, in reference to what an

Anders brief is). “This evaluation requires not only that counsel refer the court to anything in the

record that might arguably support the appeal, citing applicable legal authorities, but it also

requires appellate counsel to discuss the evidence introduced at trial which entails providing the

reviewing court with ready references to the record.” Stafford v. State, 813 S.W.2d 503, 510 n.3

(Tex. Crim. App. 1991). More specifically, as this court has held, an Anders brief “must

demonstrate that counsel has conscientiously examined the record and determined that the appeal

is so frivolous that the appellant is not entitled to counsel on appeal. A proper Anders brief

therefore must contain references to the record, citations to authority, and legal analysis.” Nichols

v. State, 954 S.W.2d 83, 85 (Tex. App.—San Antonio 1997, order) (per curiam) (internal citations

omitted) (citing High, 573 S.W.2d at 812–13). In other words, “counsel should present, along with

a statement of the strongest possible arguments for the contentions, a brief explanation of the

contrary authority that led counsel to conclude that the contentions were frivolous.” WAYNE R.

LAFAVE, ET AL., 3 CRIM. PROC. § 11.2(c) (4th ed.) (citing High, 573 S.W.2d at 807).

These uniform Anders briefing requirements serve numerous, important purposes. Briefs

complying with these requirements help “safeguard against hastily-drawn or mistaken

conclusions” that an appeal is wholly frivolous. See id. at § 11.2(c) & n.135. They reassure the

appellate court that counsel has thoroughly and conscientiously reviewed the record for potential

issues. Schulman, 252 S.W.3d at 407; Nichols, 954 S.W.2d at 85. Briefs satisfying these

requirements also provide “a roadmap for [the court’s] review of the record because the court itself

must be assured that the attorney has made a legally correct determination that the appeal is
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frivolous.” Schulman, 252 S.W.3d at 407; see D.A.S., 973 S.W.2d at 297. Moreover, such briefs

ensure indigent parents whose rights have been terminated “receive substantially the same

treatment as nonindigent defendants,” have some understanding as to why their lawyer is not

advocating on their behalf, and provide them with some basis to determine—without the assistance

of a lawyer—whether to file a pro se brief. See D.A.S., 973 S.W.2d at 297; Schulman, 252 S.W.3d

at 407–08.

These purposes would be subverted if, as the dissent argues, a “professional evaluation”

included nothing more than a detailed summary of the evidence at trial, and a discussion of and

citations to Anders v. California and its progeny. In any appeal, an appellant’s brief must contain

not only a “Statement of the Case” and a “Statement of the Facts” (preferably with record cites),

see TEX. R. APP. P. 38.1(d), (g), but also an “Argument” section “contain[ing] a clear and concise

argument for the contentions made, with appropriate citations to authorities and to the record.” Id.

R. 38.1(i). This court uniformly applies this basic briefing requirement to issues in merits briefs

when litigants can afford to retain counsel. 3 If appellate courts do not ensure Anders briefs are held

to the same standard, then indigent parents would not “receive substantially the same treatment as

nonindigent” litigants. See D.A.S., 973 S.W.2d at 297; see also In re E.L.Y., 69 S.W.3d 838, 842

(Tex. App.—Waco 2002, order) (per curiam) (holding Anders briefs in termination appeals must

comply with Rule 38.1). And when, as here, a parent is present for the trial, even the most thorough

description of the evidence admitted at trial will merely tell the parent what the parent already

knows; the Anders brief will be of little to no assistance to the parent in understanding why counsel

3
See, e.g., Black v. Watts, No. 04-17-00489-CV, 2018 WL 3747746, at *6 (Tex. App.—San Antonio Aug. 8, 2018,
pet. filed) (mem. op.) (holding failure to comply with Rule 38.1(i) waives the issue); Lajzerowicz v. Lajzerowicz, No.
04-16-00491-CV, 2018 WL 626593, at *4 (Tex. App.—San Antonio Jan. 31, 2018, no pet.) (mem. op.) (same);
Mauricio v. Cervantes, No. 04-16-00260-CV, 2017 WL 2791324, at *4 (Tex. App.—San Antonio June 28, 2017, no
pet.) (mem. op) (same); Estate of Perez-Muzza, No. 04-17-00718-CV, 2018 WL 4096388, at *2 n.1 (Tex. App.—San
Antonio Aug. 29, 2018, pet. filed) (mem. op.) (same); In re M.I.W., No. 04-17-00207-CV, 2018 WL 1831678, at *3
n.4 (Tex. App.—San Antonio Apr. 18, 2018, no pet.) (mem. op.) (same).

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is not advocating on his or her behalf and in determining whether—without the advice of counsel—

to file a pro se brief. See D.A.S., 973 S.W.2d at 297; Schulman, 252 S.W.3d at 407–08.

Like counsel’s motion, the dissent cites no authority that a summary of the evidence at trial

with citations to the record, and assertions that an appeal is wholly frivolous with citations to

Anders, is a “professional evaluation of the record.” The dissent goes further than counsel’s motion

and posits our order is legally incorrect. The dissent’s position (1) is irreconcilable with the

common understanding of the term “professional evaluation”; (2) violates High’s mandate:

[We] will not accept [Anders] briefs unless they discuss the evidence adduced at
trial . . . refer to pages in the record where objections were made, the nature of the
objection, the trial court’s ruling, and discuss either why the trial court’s ruling was
correct or why the appellant was not harmed by the ruling of the court . . . .

573 S.W.2d at 813 (emphasis added); (3) overlooks this court’s requirement that an Anders brief

must contain “legal analysis,” Nichols, 954 S.W.2d at 85; (4) conflicts with at least six other Texas

courts of appeals’ application of the uniform Anders briefing requirements; 4 and (5) is inconsistent

4
See, e.g., Johnson v. State, 885 S.W.2d 641, 648 (Tex. App.—Waco 1994, order) (per curiam) (striking Anders brief
that “spent thirty-six pages . . . reviewing . . . the evidence” because it “failed to refer to pages in the record where
objections were made”); Loggins v. State, 701 S.W.2d 51, 52–53 (Tex. App.—Dallas 1985, order) (striking Anders
brief that “outline[d] the procedural history [and] summarize[d] the substance of the witnesses’ testimony”); see also
Echeta v. State, 510 S.W.3d 100, 102–04 (Tex. App.—Houston [1st Dist.] 2016, order) (striking brief that omitted
discussion of a critical stage of trial); Hung Le v. State, 510 S.W.3d 96, 99 (Tex. App.—Houston [1st Dist.] 2016,
order) (striking brief that “contain[ed] no reference to or analysis of the adequacy of appellant’s legal representation
at trial”); D.M. v. Tex. Dep’t of Family & Protective Servs., No. 03-12-00826-CV, 2013 WL 839770, at *1 (Tex.
App.—Austin Feb. 28, 2013, order) (mem. op.) (striking Anders brief because it did not discuss possible jury charge
error); Banks v. State, 341 S.W.3d 428, 430 (Tex. App.—Houston [1st Dist.] 2009, order) (requiring re-briefing when
statement about ineffective assistance of counsel was “conclusory”); Ezernack v. State, No. 12-01-00213-CR, 2002
WL 1610028, at *1 (Tex. App.—Tyler July 17, 2002, order) (per curiam) (mem. op., not designated for publication)
(striking Anders brief with “no analysis or explanation of . . . the sufficiency of the evidence, the admissibility of the
evidence . . . or whether Appellant received ineffective assistance of counsel at trial”); Williams v. State, 976 S.W.2d
871, 873 (Tex. App.—Corpus Christi 1998, order) (per curiam) (striking Anders brief that contained no “citations to
any legal authority other than Anders”); Jeffery v. State, 903 S.W.2d 776, 779 (Tex. App.—Dallas 1995, order) (“The
brief appellate counsel filed in this case does not meet the requirements of Anders. The brief simply summarizes the
evidence and then concludes that the appeal is frivolous.”) (case history has been omitted for brevity).

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with the guidance other courts have published to ensure compliance with the uniform Anders

briefing requirements. 5

We conclude the Texas courts, including this court, that have discussed the uniform Anders

briefing requirements have meant exactly what they have said: an Anders brief must “contain” a

“professional evaluation” of the record “demonstrating why” with “legal analysis” there are no

arguable grounds to be advanced. See, e.g., High, 573 S.W.2d at 812; Nichols, 954 S.W.2d at 85.

The contents of a brief in a termination appeal must refer the court to anything in the record that

might possibly support the appeal with specific page references to the record and citations to legal

authority. If, after a conscientious examination of the record, counsel determines the appeal is

frivolous and without merit and cannot advance any arguable grounds of error, then the brief must

contain a professional evaluation of the record (again, with specific references to the record and

citations to authority relating to that legal issue) demonstrating why counsel has concluded the

issue is frivolous. This further demonstrates that counsel has conscientiously reviewed the record

and allows the indigent parent to understand and evaluate — without the assistance of a lawyer —

counsel’s position and to decide whether to file a pro se brief. See Anders, 386 U.S. at 742-45;

P.M., 520 S.W.3d at 27 & nn. 9–10, 14; D.A.S., 973 S.W.2d at 297, 299; Schulman, 252 S.W.3d

at 406 & n.9; Stafford, 813 S.W.2d at 510; High, 573 S.W.2d at 812–13; Nichols, 954 S.W.2d at

85; LAFAVE, at § 11.2(c); see also supra nn. 3–4 and accompanying text.

5
Those courts’ guidelines can be found online. See U.S. Court of Appeals for the Fifth Circuit, Anders Guidelines,
www.ca5.uscourts.gov/docs/default-source/forms-and-documents---clerks-office/forms-and-samples/andersguidelin
es.pdf (requiring Anders briefs to include a “discussion” of a specific list of the significant parts of a criminal case);
First & Fourteenth Courts of Appeals of Texas, Anders Guidelines, http://www.txcourts.gov/media/1436342/anders-
guidelines.pdf (requiring Anders briefs, depending on the nature of the case, to address up to nine specific aspects of
a criminal trial); Thirteenth Court of Appeals of Texas, Anders Guidelines, http://www.txcourts.gov/13thcoa/ practice-
before-the-court/anders-guidelines (same, but requiring briefs to “expressly address” up to twelve issues).

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B. Application

With these principles in mind, we turn to considering counsel’s brief in this case. Again,

counsel’s motion does not argue that this court’s September 21, 2018 order was legally incorrect.

Counsel also does not argue—or even assert—that his brief satisfies the uniform Anders briefing

requirements. Contrary to Rule 38.1(i), the brief does not contain an “Argument” section. See TEX.

R. APP. P. 38.1(i); E.L.Y., 69 S.W.3d at 842. Instead, immediately before the “Conclusion and

Prayer” section, the brief contains a less-than-one-and-a-half-page “Summary of the Argument

Regarding Anders Findings” section:

Summary of Argument Regarding Anders Finding

“In determining whether an appeal is frivolous, a judge may consider whether
the appellant has presented a substantial issue for appellate review.” TEX. CIV.
PRAC. & REM. CODE, Section 13.003(b) (Vernon 2015). It is well established
that “a proceeding is ‘frivolous’ when it ‘lacks an arguable basis either in law or in
fact.’” De La Vega v. Taco Cabana, Inc., 974 S.W.2d 152, 154 (Tex. App.–San
Antonio 1998, no pet.) (quoting Neitzke v. Williams, 490 U.S. 319, 325, 109 S.Ct.
1827, 1831-32 (1989)). Appellant's Counsel has reviewed the record and finds that
the evidence adduced at trial is sufficient to satisfy the court’s findings. Further,
Appellant’s attorney was unable to find any reversible error in the record, or that
the evidence was legally or factually insufficient to justify asserting any ground on
appeal regarding that termination of Appellant's parental rights was not in the best
interest of the children, as set forth in the Order for Termination.

Counsel for Appellant, after thorough examination, can find no errors
warranting reversal that can be legitimately supported by the record. In Anders v.
California, 386 U.S. 738, 741-44, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), the United
States Supreme Court held that a court-appointed defense attorney in a criminal
case who determines, after fully examining the record, that an appeal is frivolous
must so advise the appellate court and then set forth any potential points of error
and applicable law that might arguably support the appellant's position. The Court
must then conduct “a full examination” of the record and determine independently
whether the case is “wholly frivolous.” Penson v. Ohio, 488 U.S. 75, 80, 109 S.Ct.
346, 102 L.Ed.2d 300 (1988). This same standard applies to court appointed
counsel in appeals from termination of parental rights. In re K.M., 98 S.W.3d 774,
777 (Tex. App–Fort Worth 2003, no pet.) (“We hold that the Anders procedures
apply to termination of parental rights appeals like this one when court appointed
counsel has concluded that there are no non-frivolous issues for appeal”).
Appellant’s attorney has diligently reviewed the record and cannot find any point
of error upon which a non-frivolous appeal might be based.
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(emphasis added). This section of the brief is identical—word for word—to the Anders briefs that

counsel filed in the fifteen cases he cites. Because there is no “Argument” section, this section of

the brief is critical, and nothing in this section is specific to appellant’s case. Counsel’s conclusory

statements and typographical error in this critical section of the brief raise serious questions about

whether counsel has “conscientiously examined” this record, in which a jury and not the court,

was the factfinder. See Nichols, 954 S.W.2d at 85; see also McMullen v. State, Nos. 05-15-01284-

CR & 05-15-01285-CR, 2016 WL 6124131, at *1 (Tex. App.—Dallas Oct. 20, 2016, order) (mem.

op., not designated for publication) (striking Anders brief in part because counsel used the wrong

name for appellant, which weighed against concluding counsel had provided a professional

evaluation of the record).

We agree that the brief describes the evidence at trial in detail, but this is insufficient. See

High, 573 S.W.2d at 813 (requiring some discussion of objections); Jeffery, 903 S.W.2d at 779–

80 (striking Anders brief that “simply summarize[d] the evidence and then conclude[d] that the

appeal is frivolous”); Johnson, 885 S.W.2d at 648 (rejecting Anders brief with thorough

description of evidence); Loggins, 701 S.W.2d at 52–53 (same). Appellant was also present at trial

and is presumptively aware of what transpired. The Anders brief does little, if anything, to assist

appellant in determining whether to file a pro se brief. And the brief does not discuss or even

mention the key parts of the jury trial that occurred in this case—such as jury selection, the jury

charge, and/or the charge conference—and does not discuss generally or specifically the

numerous, overruled evidentiary objections at trial or the adequacy of appellant’s legal

representation at trial. See High, 573 S.W.2d at 813; Hung Le, 510 S.W.3d at 99.

We hold counsel’s Anders brief does not satisfy the uniform Anders briefing requirements

because it does not contain a professional evaluation of the record demonstrating why there are no

arguable grounds to be advanced. See High, 573 S.W.2d at 812. Although counsel’s brief refers
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the court to a sufficiency of the evidence issue that might possibly support the appeal, the

substantive section of the brief contains no citations to the record and authority relevant to that

legal issue. See Johnson, 885 S.W.2d at 648 (“[A]lthough more than sufficient in the discussion

of the sufficiency of the evidence, the brief fails to present an adequate ‘professional evaluation’

of the record . . . .”). Counsel’s brief contends in the “Summary of the Argument” section that the

appeal is wholly frivolous, but the brief does not contain any “legal analysis” or “a clear and

concise argument for the contention[] made, with appropriate citations to authorities and to the

record.” See TEX. R. APP. P. 38.1(i) (emphasis added); E.L.Y., 69 S.W.3d at 842; see also Nichols,

954 S.W.2d at 85. Consequently, counsel’s brief does not explain why counsel has concluded the

issue is frivolous in a way that assures this court that counsel has conscientiously reviewed the

record and, equally important, in a way that allows appellant—without the assistance of a lawyer—

to understand why her lawyer is not advocating on her behalf, to evaluate counsel’s position, and

to have a starting point to decide whether to file a pro se brief. See Anders, 386 U.S. at 742-45;

P.M., 520 S.W.3d at 27 & nn. 9–10, 14; D.A.S., 973 S.W.2d at 297, 299; Schulman, 252 S.W.3d

at 406 & n.9; Stafford, 813 S.W.2d at 510; High, 573 S.W.2d at 812–13; Nichols, 954 S.W.2d at

85; LAFAVE, at § 11.2(c); see also supra nn. 3–4 and accompanying text.

CONCLUSION

Counsel’s brief contains bare, conclusory statements and fails to satisfy the uniform

requirements for Anders briefs. We express no opinion as to whether there is, or is not, a potentially

meritorious issue in this record; determining whether the form of an Anders brief is sufficient is

an inquiry that is legally distinct from determining whether, in substance, counsel has correctly

concluded the appeal is wholly frivolous. See Echeta, 510 S.W.3d at 105; Hung Le v. State, 510

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S.W.3d at 100. We deny counsel’s request for relief from our September 21, 2018 order and order

counsel to file the redrawn brief within ten days.

Luz Elena D. Chapa, Justice

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