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In re C.P.

Court of Appeals of Texas, Tenth District

July 24, 2019

IN THE INTEREST OF C.P. AND B.P., CHILDREN

          From the 12th District Court Madison County, Texas Trial Court No. 18-15004

          Before Chief Justice Gray, Justice Davis, and Justice Neill

          MEMORANDUM OPINION

          JOHN E. NEILL Justice

         On May 1, 2019, this Court rendered an Order abating the appeal to the trial court for a determination: (1) whether Joshua Pursley desires to continue the appeal; and (2) whether Joshua Pursley should be appointed new counsel on appeal. Pursley did not appear at the abatement hearing. Carrie M. Kerley, Pursley's trial counsel, represented to the trial court at the hearing that she notified Pursley of the hearing by text message, and that she had previously had contact with Pursley at that same phone number. Kerley further represented to the trial court that she notified Pursley in a detailed text message that she had filed a motion to withdraw as his counsel and that a hearing had been set to determine whether Pursley wanted to continue the appeal. Kerley stated in the text message:

If you want to continue the appeal of the trial court's decision, you must appear on Thursday May 9th, 2019, at 10:00 a.m. at 101 West Main Street, Room 216, Madisonville, Texas 77864. If you fail to appear, your appeal will likely be dismissed.

         Kerley also provided the district clerk with the phone number, and the district clerk attempted to contact Pursley. A CASA representative was present at the hearing and stated that she contacted Pursley's mother. Pursley's mother provided the CASA representative with a phone number for her son, and it was the same phone number that Kerley provided to the trial court. Kerley gave the trial court Pursley's last known address.

         The trial court entered an order on May 9, 2019, and permitted Carrie M. McKerley to withdraw as counsel of record for Joshua Pursley. The trial court found that Joshua Pursley was notified of the motion for withdrawal and the hearing on the motion, but failed to appear. The trial court further found that Joshua Pursley "has no interest in proceeding with his appeal."

         This Court reinstated the appeal on May 21, 2019 and notified Pursley that his appeal is subject to dismissal for want of prosecution. See Tex. R. App. P. 42.3 (b). This Court further informed Pursley that the Court will dismiss this appeal unless, within 21 days from the date of the letter, a response is filed showing Pursley desired to continue his appeal. This Court sent the notice to Pursley at his last known address that was provided by counsel at the abatement hearing and also to another address on file with the Court. Those are the only two addresses for Pursley that have been provided to this Court. Pursley did not file a response.

         Accordingly, this appeal is dismissed for want of prosecution. See Tex. R. App. P. 42.3 (b).

         Appeal dismissed

          Justice Davis concurring with a note [*]

         DISSENTING OPINION

          TOM GRAY, Chief Justice

         I cannot join the Court in its disposition of this proceeding. The appeal should never have been filed.[1] But the trial court should never have entered the judgment that it did based on the record before it. The record is filled with zero evidence to support the findings relating to the predicate grounds upon which it based the termination of Pursley's parental rights. By zero evidence, I mean the traditional "no evidence" level of evidence, not the current iteration of "legally insufficient" evidence. Moreover, if we were to conduct an Anders review of the record, we would have to abate it for the appointment of new counsel because there are numerous meritorious issues for presentation on ...


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