Court of Appeals of Texas, Second District, Fort Worth
THE 323RD DISTRICT COURT OF TARRANT COUNTY TRIAL COURT NO.
LIVINGSTON, C.J.; KERR and PITTMAN, JJ.
MEMORANDUM OPINION 
ELIZABETH KERR JUSTICE
an appeal from a juvenile court's order transferring
appellant D.T.'s case to criminal district court for D.T.
to be tried as an adult. See Tex. Fam. Code Ann.
§ 54.02 (West 2014). D.T.'s court-appointed
appellate counsel has filed a brief in which he states that
he has reviewed the record and believes the appeal is
frivolous. Counsel's brief-apart from his failure to file
a motion to withdraw- meets the requirements of Anders v.
California by presenting a professional evaluation of
the record demonstrating why there are no arguable grounds
for relief. See 386 U.S. 738, 87 S.Ct. 1396 (1967);
In re D.A.S., 973 S.W.2d 296, 299 (Tex. 1998) (orig.
proceeding) (holding that Anders procedures apply to
counsel notified D.T.'s mother by mail of the right to
file a pro se response to counsel's Anders
brief, and this court further notified both D.T. and his
mother by mail of the right to file a response to
counsel's Anders brief. We have not received any
response. The State declined to file a brief.
appellant's court-appointed attorney files an
Anders brief on the ground that the appeal is
frivolous and fulfills the requirements of Anders,
this court is obligated to undertake an independent
examination of the record. See Stafford v. State,
813 S.W.2d 503, 511 (Tex. Crim. App. 1991); Mays v.
State, 904 S.W.2d 920, 922-23 (Tex. App.-Fort Worth
1995, no pet.). When analyzing whether any grounds for appeal
exist, we consider the record, the Anders brief, and
any pro se response. In re Schulman, 252 S.W.3d 403,
408-09 (Tex. Crim. App. 2008) (orig. proceeding).
carefully reviewed counsel's brief and the appellate
record. Finding no reversible error, we agree with counsel
that this appeal is without merit. See In re K.C.,
No. 2-09-150-CV, 2010 WL 323532, at *1 (Tex. App.-Fort Worth
Jan. 28, 2010, no pet.) (mem. op.). Therefore, we affirm the
trial court's transfer order.
Ordinarily in an Anders case, the court-appointed
appellate attorney files a motion to withdraw and a brief-the
Anders brief-in support of the motion.
Anders, 386 U.S. at 744, 87 S.Ct. at 1400. But this
is not an ordinary Anders case because appointed
appellate counsel did not file a motion to withdraw in
conjunction with his Anders brief and declined to do
so even after the court, by clerk's letter, specifically
asked him to. Appellate counsel's Anders brief
nonetheless prays that we grant his (non-existent) motion to
withdraw in addition to granting all other relief to which
his client may be entitled.
upon our finding that an appeal is frivolous, we would grant
counsel's motion to withdraw. But in In re P.M.,
a termination-of-parental-rights appeal, our supreme court
held-in reliance on family code section 107.013 providing
that appointed counsel continues to serve in that capacity
until the date all appeals are exhausted or waived-that the
mere filing of an Anders brief in the court of
appeals does not warrant counsel's withdrawal for
purposes of proceeding in the supreme court. No. 15-0171,
2016 WL 1274748, at *3 (Tex. Apr. 1, 2016) (order). The
Juvenile Justice Code contains a similar provision: when, as
in this case, the trial court finds a child's family
indigent and appoints counsel, that counsel must continue to
represent the child "until the case is
terminated, the family retains an attorney, or a new
attorney is appointed by the juvenile court." Tex. Fam.
Code Ann. § 51.101 (West Supp. 2016) (emphasis added).
record does not show that either of the latter two events has
occurred here, and under the reasoning of In re
P.M., this case has not "terminated" because
not all appeals have been exhausted. See 2016 WL
1274748, at *2 & n.5, *3. Accordingly, in similar cases
where appointed appellate counsel has filed both a motion to
withdraw and an Anders brief in support of the
motion, even though we affirmed the trial court's
judgment we nevertheless denied counsel's motion to
withdraw. See In re A.H., No. 02-16-00320-CV, 2017
WL 1573735, at *1 (Tex. App.-Fort Worth Apr. 27, 2017, no
pet.) (citing In re P.M. in denying counsel's
motion to withdraw in frivolous appeal); In re J.B.,
Jr., No. 02-16-00205-CV, 2017 WL 1536201, at *1 (Tex.
App.-Fort Worth Apr. 27, 2017, no pet.) (mem. op) (same);
In re Z.N., No. 02-16-00426-CV, 2017 WL 1352123, at
*1 (Tex. App.-Fort Worth Apr. 13, 2017, no pet.) (mem. op)
(same); In re T.J.-F., No. 02-16-00372-CV, 2017 WL
218297, at *1 (Tex. App.-Fort Worth Jan. 19, 2017, no pet.)
(mem. op.) (same); see also In re T.T., No.
12-16-00326-CV, 2017 WL 1427257, at *2 (Tex. App.-Tyler Apr.
19, 2017, no pet.) (mem. op.) (same); M.R. v. Tex.
Dep't of Family & Protective Servs., No.
03-17-00071-CV, 2017 WL 1315445, at *2 n.3 (Tex. App.-Austin
Apr. 6, 2017, no pet.) (mem. op.) (same); In re
A.C., Nos. 01-15-00931-CV, 01-15-00932-CV,
01-15-00933-CV, 2016 WL 1658777, at *1 (Tex. App.-Houston
[1st Dist.] Apr. 26, 2016, no pet.) (mem. op.) (same).
least one court has disapproved of counsel's failure to
file a motion to withdraw under these circumstances. See
In re G.L.R., No. 07-17-00057-CV, 2017 WL 1908562, at *2
n.4 (Tex. App.-Amarillo May 3, 2017, no pet. h.) (mem. op.)
(disapproving counsel's failure to file motion to
withdraw but dispensing with the motion because counsel's
duty was to remain on the case through the exhaustion of
proceedings, including the possible filing of a petition for
review). Yet if counsel had filed a motion to withdraw, that
same court would have declined to rule on it because of
counsel's continuing duty to represent the client.
See In re S.M., No. 07-16-00407-CV, 2017 WL 1449222,
at *1 n.2 (Tex. App.- Amarillo Apr. 17, 2017, no pet.) (mem.
op.) (declining to rule on motion to withdraw). The conundrum
is that Anders requires a motion to withdraw, but in
a case like this one, moving to withdraw contravenes
counsel's duty to remain on the case.
review of United States Supreme Court authority shows that
the Supreme Court did not intend the Anders
procedures to be mandatory. See Smith v. Robbins,
528 U.S. 259, 272-76, 120 S.Ct. 746, 757-59 (2000). The
procedure set out in Anders was a suggestion, not a
"straightjacket." Id. at 273, 120 S.Ct. at
similar manner, the Texas supreme court appears to have
contemplated dispensing with the motion-to-withdraw
requirement in this context; it stated, "Counsel's
obligation to the client may still be satisfied by filing an
appellate brief meeting the standards set in Anders v.
California." In re P.M., 2016 WL 1274748,
at *3 (footnote omitted). The supreme court also intimated
that a motion to withdraw was effectively a moot issue unless
the motion was based on something other than Anders.
Id. at *3-4 (stating that a motion to withdraw may
be premature, but a motion to withdraw on some basis other
than Anders may be ripe).
dispense with a motion to withdraw in this case and disregard
any reference to withdrawing as counsel in counsel's
Anders brief. See In re G.P., 503 S.W.3d
531, 534-35 (Tex. App.-Waco 2016, pet. denied). In the event
we disagree with an Anders brief-that is, if we
determine that there were non-frivolous issues that counsel
should have pursued-we have the means of proceeding
notwithstanding that absence of a motion to withdraw. See
In re X.H., No. 07-16-00410-CV, 2017 WL 491941, at *2
n.4 (Tex. App.-Amarillo Feb. 6, 2017, order) (disagreeing
with appointed counsel's Anders brief that the
appeal was frivolous and disapproving of counsel's
failure to file a motion to withdraw but removing ...