In the Matter of J.H.D., a Juvenile v. the State of Texas

• Court: Court of Appeals of Texas
• Decided: March 22, 2023
• Docket: 05-22-00664-CV
• Status: Published

Opinion

Abated and Opinion Filed March 22, 2023

S In The Court of Appeals Fifth District of Texas at Dallas No. 05-22-00664-CV

IN THE MATTER OF J.H.D., A JUVENILE

On Appeal from the 417th Judicial District Court Collin County, Texas Trial Court Cause No. 417-70487-2019

MEMORANDUM OPINION

Before Justices Reichek, Nowell, and Garcia Opinion by Justice Garcia

Appellant J.H.D. appeals from orders that modify a prior disposition of his

juvenile-delinquency case and require him to register as a sex offender. His court-

appointed appellate counsel has filed an Anders1 brief and moved to withdraw. We

grant the motion to withdraw but strike the Anders brief and remand the case for

appointment of new appellate counsel.

1 Anders v. California, 386 U.S. 738, 744 (1967). I. BACKGROUND

In July 2019, the State filed a petition seeking a finding that appellant had

engaged in delinquent conduct and other relief. An attorney was appointed to

represent him in the matter. Appellant pleaded true to indecency with a child by

contact. After a hearing, the trial judge signed a judgment finding that appellant had

committed indecency with a child by contact and signed a disposition order placing

him on probation for two years. Appellant’s attorney in this first stage of the case

did not represent him in subsequent stages until she was appointed to represent him

in this appeal.

In November 2020, the State filed a First Motion to Modify Disposition

alleging that appellant had violated the terms of his probation. A different attorney

filed a letter stating that she had been retained to represent appellant in that matter.

At the hearing of the motion, appellant pleaded true to the allegations in the motion.

The trial judge then signed an Agreed Order Modifying Disposition finding that

appellant had violated the terms of his probation and continuing his probation until

January 2023. The judge ordered appellant to report to Rockdale Youth Academy

and remain there for up to 12 months.

In January 2022, the State filed a Second Motion to Modify Disposition and

a Motion to Enter Judgment for Sex Offender Registration After Prior Deferral. The

State alleged that appellant had committed multiple probation violations, and it

requested several alternative forms of relief including commitment to the Texas

–2– Juvenile Justice Department. The trial court appointed a new attorney to represent

appellant in this proceeding.

At the hearing of the State’s motions, appellant pleaded true to the allegations.

After the hearing, the trial judge signed a TJJD Disposition Order that terminated

appellant’s probation and committed him to the Texas Juvenile Justice Department

for an indeterminate period of time not to exceed his nineteenth birthday. The judge

signed a separate order requiring appellant to register as a sex offender as required

by Texas Code of Criminal Procedure Chapter 62.

Appellant timely appealed. The trial court appointed as his appellate counsel

the same attorney who had represented appellant in connection with the State’s

original petition and the original plea in 2019.

Appellant’s appellate counsel filed a motion to withdraw and an Anders brief.

In her motion to withdraw, counsel notified appellant of his rights to examine the

appellate record and file a responsive brief. She also averred that a copy of the

motion was delivered to appellant. Additionally, this Court sent a copy of the Anders

brief to appellant’s guardian and advised her of her right to review the appellate

record and file a pro se response. We have not received a response.

II. ANALYSIS AND DISPOSITION

In Anders, the Supreme Court outlined a procedure to ensure that an indigent

criminal defendant’s right to counsel on appeal is honored when his or her appointed

attorney concludes that the appeal is without merit. See English v. State, No. 05-20-

–3– 01105-CR, 2021 WL 5002425, at *1 (Tex. App.—Dallas Oct. 28, 2021, order)

(mem. op., not designated for publication), disp. on merits, 2022 WL 2980707 (Tex.

App.—Dallas July 28, 2022, no pet.) (mem. op., not designated for publication). If

the attorney concludes that the appeal is wholly frivolous, he or she should request

permission to withdraw, simultaneously filing a brief that refers to anything in the

record that might arguably support the appeal. Id. The Anders brief must satisfy the

appellate court that the appointed attorney’s motion to withdraw is based on a

conscientious and thorough review of both the record and the law. Id. The Anders

procedure also applies to juvenile cases. In re T.M., 583 S.W.3d 836, 837 (Tex.

App.—Dallas 2019, no pet.).

We have held that it is not appropriate for appointed counsel to file an Anders

brief if counsel also served as appellant’s trial counsel. Chandler v. State, 988

S.W.2d 827, 828 (Tex. App.—Dallas 1999, order), disp. on merits, No. 05-97-

00773-CR, 2000 WL 1048495 (Tex. App.—Dallas July 31, 2000, no pet.) (not

designated for publication). There are two reasons for this rule: (1) appellate counsel

may be biased or prejudiced when evaluating his or her own performance at trial,

and (2) counsel who erred during the trial phase of the case may not recognize the

error on appeal. Id. If trial counsel is appointed to serve as appellate counsel and

comes to believe that the appeal is frivolous, he or she should move to withdraw

without filing an Anders brief so that new appellate counsel can be appointed. Id.

–4– In this case, appointed appellate counsel served as appellant’s trial counsel

during the initial disposition proceedings in the trial court, but she did not serve as

trial counsel during the modification proceeding that led to issuance of the order now

before us on appeal. Nevertheless, fundamental error could have occurred while

counsel served as appellant’s trial counsel and could be raised in this appeal. See In

re X.B., 369 S.W.3d 350, 353–55 (Tex. App.—Texarkana 2012, no pet.) (reversing

juvenile adjudication judgment for lack of jurisdiction in context of appeal from

subsequent modification order). Thus, the policy concerns underlying the Chandler

rule apply in this context, and we conclude that the rule applies.

Accordingly, we strike the Anders brief filed by appellate counsel, grant

counsel’s motion to withdraw, abate the appeal, remand the case to the trial court,

and order the trial court to appoint new appellate counsel to represent appellant. New

appellate counsel should investigate the record and file either a brief that addresses

arguable issues found in the record or an Anders brief that complies with the

requirements of Anders and its progeny.

/Dennise Garcia/ DENNISE GARCIA 220664NF.P05 JUSTICE

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