Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

In re S.R.

Court of Appeals of Texas, Tenth District

May 8, 2018

IN THE INTEREST OF S.R., A CHILD

          From the County Court at Law Bosque County, Texas Trial Court No. CV16242

          Before Chief Justice Gray, Justice Davis, and Justice Scoggins

          MEMORANDUM OPINION

          REX D. DAVIS, Justice.

         After Appellant's parental rights to his child, S.R., were terminated following a bench trial, Appellant's appointed appellate counsel filed a notice of appeal.[1] Appellant's counsel has now filed an Anders brief and a motion to withdraw.[2] Counsel asserts that he has diligently reviewed the record and that, in his opinion, the appeal is frivolous. See Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967); In re E.L.Y., 69 S.W.3d 838, 841 (Tex. App.-Waco 2002, order) (applying Anders to termination appeal).

         Counsel's brief meets the requirements of Anders; it presents a professional evaluation demonstrating why there are no arguable grounds to advance on appeal. See In re Schulman, 252 S.W.3d 403, 407 n.9 (Tex. Crim. App. 2008) ("In Texas, an Anders brief need not specifically advance 'arguable' points of error if counsel finds none, but it must provide record references to the facts and procedural history and set out pertinent legal authorities."); Stafford v. State, 813 S.W.2d 503, 510 n.3 (Tex. Crim. App. 1991). Appellant's counsel has carefully discussed why, under controlling authority, there is no reversible error in the trial court's final order of termination. Counsel has informed us that he has: (1) examined the record and found no arguable grounds to advance on appeal; (2) served a copy of the brief, motion to withdraw, and appellate record on Appellant; and (3) informed Appellant of his right to file a pro se response.[3] See Anders, 386 U.S. at 744, 87 S.Ct. at 1400; Stafford, 813 S.W.2d at 510 n.3; High v. State, 573 S.W.2d 807, 813 (Tex. Crim. App. [Panel Op.] 1978); see also Schulman, 252 S.W.3d at 409 n.23. Appellant did not file a pro se response.

         Upon receiving an Anders brief, we must conduct a full examination of all the proceedings to determine whether the case is wholly frivolous. Penson v. Ohio, 488 U.S. 75, 80, 109 S.Ct. 346, 349-50, 102 L.Ed.2d 300 (1988). An appeal is "wholly frivolous" or "without merit" when it "lacks any basis in law or fact." McCoy v. Court of Appeals, 486 U.S. 429, 439 n.10, 108 S.Ct. 1895, 1902 n.10, 100 L.Ed.2d 440 (1988). We have reviewed the entire record and counsel's brief and have found nothing that would arguably support an appeal. See Bledsoe v. State, 178 S.W.3d 824, 827-28 (Tex. Crim. App. 2005) ("Due to the nature of Anders briefs, by indicating in the opinion that it considered the issues raised in the briefs and reviewed the record for reversible error but found none, the court of appeals met the requirement of Texas Rule of Appellate Procedure 47.1."); Stafford, 813 S.W.2d at 509.

         Although we have found nothing that would arguably support an appeal, we conclude that the order of termination requires modification. The reporter's record reflects that the trial court rendered judgment in open court upon its findings that Appellant had committed the following predicate violations-Family Code subsections 161.001(b)(1)(B), (D), (E), (N), and (O). See Tex. Fam. Code Ann. § 161.001(b)(1)(B), (D), (E), (N), (O) (West Supp. 2017). The written judgment reflects that the grounds for termination were Family Code subsections 161.001(b)(1)(B), (C), (D), (N), and (O). See id. § 161.001(b)(1)(B), (C), (D), (N), (O). Accordingly, we modify the trial court's order of termination to reflect the proper predicate violations-Family Code subsections 161.001(b)(1)(B), (D), (E), (N), and (O). The trial court's order of termination is affirmed as modified.

         We deny counsel's motion to withdraw in accordance with In re G.P., 503 S.W.3d 531, 534-36 (Tex. App.-Waco 2016, pet. denied). If Appellant, after consulting with counsel, desires to file a petition for review, Appellant's appellate counsel is still under a duty to timely file with the Texas Supreme Court "a petition for review that satisfies the standards for an Anders brief."[4] See In re P.M., 520 S.W.3d 24, 27-28 (Tex. 2016).

          (Chief Justice Gray Dissents. A separate opinion will not follow.)

         Affirmed as modified.

---------

Notes:

[1] The parental rights of the child's mother were also terminated, but she has not appealed.

[2] Appellant's counsel filed his motion to withdraw twice-once on March 2, 2018, and again on April 6, 2018. Because the motions are identical, we will ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.