in the Interest of T.R. and K.B., Children

• Court: Court of Appeals of Texas
• Decided: December 30, 2020
• Docket: 10-20-00204-CV
• Status: Published

Opinion

IN THE TENTH COURT OF APPEALS

No. 10-20-00204-CV

IN THE INTEREST OF T.R. AND K.B., CHILDREN

From the 361st District Court Brazos County, Texas Trial Court No. 19-000929-CV-361

MEMORANDUM OPINION

Appellant T.R., Sr. challenges the trial court’s order appointing the Department of

Family and Protective Services as permanent managing conservator of his child, T.R.1

T.R., Sr., who is incarcerated in the Texas Department of Criminal Justice, Institutional

Division, requested that his mother be appointed temporary or permanent possessory or

managing conservator. Appellant’s appointed appellate counsel filed an Anders brief,

asserting that he has diligently reviewed the record and that, in his opinion, the appeal is

frivolous. See generally Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed. 493 (1967);

1 The case is captioned in the “Interest of T.R. and K.B., Children.” T.R. and K.B. share a mother but have different fathers. This appeal involves only T.R. and his father, T.R., Sr. see also In re E.L.Y., 69 S.W.3d 838, 841 (Tex. App.—Waco 2002, order) (applying Anders

to termination appeals). Because we could not determine from the brief whether counsel

had notified T.R., Sr. of his pro se rights, we requested that counsel do so. Counsel

responded that he provided a copy of the Anders brief to T.R., Sr., informed T.R., Sr. of

his right to review the record and file a response, and informed T.R., Sr. that he would be

entitled to have counsel file a petition for review in the Texas Supreme Court if the trial

court’s judgment was affirmed by this court. We then notified T.R., Sr. that he had the

right to file a pro se response to the Anders brief and that he should do so within thirty

days or file a motion requesting an extension of time. T.R., Sr. responded and requested

additional time to file a response and also noted that he had not received a copy of the

record. We requested counsel provide a copy of the record to T.R., Sr. and granted T.R.,

Sr.’s request for an extension of time. T.R., Sr. was notified that his response to the Anders

brief must be filed on or before December 4, 2020. Counsel notified this Court that he

sent a copy of the record to T.R., Sr. As of the date of this Memorandum Opinion, T.R.,

Sr. has not filed a response to the Anders brief.

I. Anders Brief

Pursuant to Anders, appellant's court-appointed appellate counsel has filed a brief

stating that his review of the record yielded no error upon which an appeal can be

predicated. Counsel's brief meets the requirements of Anders as 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

In the Interest of T.R. and K.B., Children Page 2 provide record references to the facts and procedural history and set out pertinent legal

authorities.”) (citing Hawkins v. State, 112 S.W.3d 340, 343-44 (Tex. App.—Corpus Christi

2003, no pet.)); Stafford v. State, 813 S.W.2d 503, 510 n.3 (Tex. Crim. App. 1991) (en banc).

In compliance with High v. State, 573 S.W.2d 807, 813 (Tex. Crim. App. [Panel Op.]

1978), appellant’s counsel has carefully discussed why, under controlling authority, there

are no reversible errors in the trial court’s judgment. Counsel has informed this Court

that he has: (1) examined the record and found no arguable grounds to advance on

appeal; (2) served a copy of the brief on appellant; and (3) provided appellant with a copy

of the record and informed him of his right to file a pro se response. See Anders, 386 U.S.

at 744, 87 S. Ct. at 1400; Stafford, 813 S.W.2d at 510 n.3; see also In re Schulman, 252 S.W.3d

at 409 n.23. More than an adequate period of time has passed, and appellant has not filed

a pro se response. Id. at 409.

II. Independent Review

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). 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.

In the Interest of T.R. and K.B., Children Page 3 III. Conclusion

Based on the foregoing, we affirm the judgment of the trial court. In addition, we

remind appellant's appointed appellate counsel that if appellant, after consulting with

counsel, desires to file a petition for review, 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.” In re P.M., 520 S.W.3d 24, 27-28 (Tex. 2016); see In re G.P., 503 S.W.3d 531,

535 (Tex. App.—Waco 2016, pet. denied); see also TEX. FAM. CODE ANN. § 107.016(2).

REX D. DAVIS Justice

Before Chief Justice Gray, Justice Davis, and Justice Neill Judgment affirmed Opinion delivered and filed December 30, 2020 [CV06]

In the Interest of T.R. and K.B., Children Page 4