in the Interest of D.A.C., a Child

• Court: Court of Appeals of Texas
• Decided: June 29, 2009
• Docket: 07-09-00108-CV
• Status: Published

Opinion

NO. 07-09-0108-CV

IN THE COURT OF APPEALS

FOR THE SEVENTH DISTRICT OF TEXAS

AT AMARILLO

PANEL B

JUNE 29, 2009

______________________________

IN THE INTEREST OF D.A.C.,

A Child

_________________________________

FROM THE 31ST DISTRICT COURT OF WHEELER COUNTY;

NO. 12,093; HON. STEVEN RAY EMMERT, PRESIDING _______________________________

Abatement and Remand _______________________________

Before QUINN, C.J., and CAMPBELL and HANCOCK, JJ.

Appellant, Jennifer Carpenter, appeals from the termination of her parental rights

to her minor child, D.A.C. Her appointed counsel has filed a motion to withdraw, together

with an Anders1 brief, wherein he “finds no error in the record and urges this Court allow

him to withdraw as Appellant’s attorney.”2 On June 22, 2009, counsel for the Texas

Department of Family and Protective Services filed a response to the Anders brief

1 Anders v. California, 386 U.S. 738, 744-45, 87 S.Ct. 1396, 18 L.Ed.2d 492 (1967).

2 This court has held that appointed counsel m ay file an Anders brief in an appeal from an order term inating parental rights. See In re A.W .T., 61 S.W .3d 87, 88 (Tex. App.–Am arillo 2001, no pet.). contending, among other things, that appellant’s counsel failed to address the nine issues

for appeal raised in appellant’s statement of points on appeal.

We, too, find the brief to be deficient not only by failing to follow the procedural

requirements pursuant to Anders v. California, 386 U.S. 738, 744-45, 87 S.Ct. 1396, 18

L.Ed.2d 492 (1967), but by failing to address the issues raised by appellant in her

statement of points. While we make no comment upon their ultimate merit, they

nonetheless pose arguable issues for appellate review. Thus, we do not accept appellate

counsel’s representation concerning the merits of the appeal.

Counsel’s representation also poses another problem. In his uttering, via a public

record, that the appeal was meritless, one can reasonably question whether a conflict of

interest has arisen between counsel and client. So too could it be reasonably questioned

whether by making the statement, Carpenter’s current attorney can zealously represent her

if allowed to remain her attorney of record.

Accordingly, we abate the appeal and remand the cause to the 31st District Court

of Wheeler County, Texas. Upon remand, the trial court shall remove appellant’s current

attorney and appoint another to represent her in this appeal. The trial court shall further

order the newly appointed counsel to file an appellant’s brief, as per the Texas Rules of

Appellate Procedure, developing the aforementioned arguable grounds, and all other

grounds that might support reversal or modification of the judgment. Should new counsel

determine, after a thorough review of the appellate record, that the appeal is indeed

frivolous, he may opt to file an Anders brief; however, he must comport with the

requirements specified in In re Schulman, 252 S.W.3d 403 (Tex. Crim. App. 2008) and In

2 re J.B., __ S.W.3d ___, 2009 WL 283197 (Tex. App.–El Paso February 5, 2009, no pet.

h.) before doing so.

The deadline for filing an appellant’s brief with the clerk of this appellate court is

extended to August 10, 2009, unless further extended by this court. Any responding brief

which the Department may care to submit shall be filed within 30 days thereafter. Finally,

the trial court is further directed to inform this court, in writing, of the name, address, and

state bar number of Carpenter’s newly appointed counsel by July 10, 2009.

It is so ordered.

Per Curiam