in the Matter of J.L.C., a Juvenile

• Court: Court of Appeals of Texas
• Decided: August 8, 2018
• Docket: 10-18-00061-CV
• Status: Published

Opinion

IN THE TENTH COURT OF APPEALS

No. 10-18-00061-CV

IN THE MATTER OF J.L.C., A JUVENILE

From the County Court at Law No. 1 Johnson County, Texas Trial Court No. J05776

OPINION

J.L.C. appeals the trial court's Order Modifying Disposition—Determinate

Sentence committing J.L.C. to the Texas Juvenile Justice Department for four years with

a possible transfer to the Texas Department of Criminal Justice. We affirm.

J.L.C.’s appellate attorney filed a motion to withdraw and an Anders brief in

support of the motion to withdraw, asserting that the appeal presents no issues of

arguable merit. See Anders v. California, 386 U.S. 738, 87 S. Ct. 1396, 18 L. Ed. 2d 493 (1967).

The procedures set forth in Anders are applicable to appeals in juvenile proceedings. See

In re D.A.S., 973 S.W.2d 296, 299 (Tex. 1998). Counsel advised J.L.C. and his guardian that

counsel had filed the motion and brief pursuant to Anders and provided J.L.C. a copy of

the record, advised J.L.C. and his guardian of the right to review the record and the right to submit a response on J.L.C.’s behalf. See id. at 299. Neither J.L.C. nor his guardian

submitted a response.

Counsel asserts in the Anders brief that counsel has made a thorough review of the

appellate record for non-frivolous issues, including a review of the admonishments,

waiver of jury trial, sufficiency of the petition, the plea, and the waiver of and right to an

appeal in the initial adjudication and disposition hearings, and a review of the hearing,

reasonableness of the sentence, and the sufficiency of the evidence in the modification

hearing. After the review, counsel reluctantly concluded there was no non-frivolous

issue to raise in this appeal. Counsel's brief evidences a professional evaluation of the

record for error, and we conclude that counsel performed the duties required of

appointed counsel. See Anders, 386 U.S. at 744; High v. State, 573 S.W.2d 807, 812 (Tex.

Crim. App. 1978); see also In re Schulman, 252 S.W.3d 403, 407 (Tex. Crim. App. 2008).

Upon the filing of an Anders brief, as the reviewing appellate court, it is our duty

to independently examine the record to decide whether counsel is correct in determining

that an appeal is frivolous. See Anders, 386 U.S. at 744; Stafford v. State, 813 S.W.2d 503,

511 (Tex. Crim. App. 1991). Arguments are frivolous when they "cannot conceivably

persuade the court." McCoy v. Court of Appeals, 486 U.S. 429, 436, 108 S. Ct. 1895, 100 L.

Ed. 2d 440 (1988). Having carefully reviewed the entire record and the Anders brief, we

have determined that the appeal is frivolous. See Bledsoe v. State, 178 S.W.3d 824, 826-27

(Tex. Crim. App. 2005). Accordingly, we affirm the trial court's Order Modifying

Disposition—Determinate Sentence signed on February 14, 2018.

In the Matter of J.L.C., a Juvenile Page 2 Counsel's motion to withdraw from representation of J.L.C. is granted, and

counsel is discharged from representing J.L.C. in this appeal.1 Should J.L.C. wish to seek

further review of this case by the Texas Supreme Court, he or his guardian must either

retain an attorney to file a petition for review or must file a pro se petition for review. No

substitute counsel will be appointed. Any petition for review must be filed within 45

days from the date of this opinion or the last timely motion for rehearing or timely motion

for en banc reconsideration has been overruled by this Court. See TEX. R. APP. P. 53.7.

Any petition and all copies of the petition for review must be filed with the Clerk of the

1 Although some courts have decided to extend the decision in In re P.M. to Anders appeals in juvenile cases, we do not. See, e.g. In re C.F., No. 03-18-00008-CV, 2018 Tex. App. LEXIS 4128 *2 fn.1 (Tex. App.—Austin June 8, 2018, no pet. h.) (mem. op.); In re A.H., 530 S.W.3d 715, 717 (Tex. App.—Fort Worth 2017, no pet.); In re A.C., Nos. 01-15-00931-CV, 01-15-00932-CV, 01-15-00933-CV, 2016 Tex. App. LEXIS 4285 (Tex. App.— Houston [1st Dist.] Apr. 26, 2016, no pet.) (mem. op.). First, whereas the statutes in the Family Code governing the appointment of counsel and counsel’s continued representation in State-initiated termination cases provide no alternative but to appoint counsel and retain appointed counsel until the appellate process is final, see TEX. FAM. CODE ANN. §§ 107.013; 107.016 (West 2014), the statutes in the Juvenile Justice Code are different. See TEX. FAM. CODE ANN. §§ 51.10; 51.101 (West 2014). There are different situations in which a juvenile may or must be represented by counsel. Id. Counsel may even be waived in certain situations. See id. § 51.10. And, when counsel is appointed, counsel is not always required to represent the child until “the case is terminated.” When a motion or petition is filed seeking to modify a disposition by committing the child to the Texas Juvenile Justice Department, as we have in this case, appointed counsel continues to represent the child only “until the court rules on the motion or petition….” Compare TEX. FAM. CODE ANN. § 51.101 (a), (b), and (d) with (e) (West 2014). Second, the Texas Supreme Court has already addressed whether the child is required to be represented by counsel after a court in an Anders appeal has determined the appeal to be frivolous when it decided to extend the Anders procedures to juvenile cases. See In re D.A.S., 973 S.W.2d 296 (Tex. 1998). When determining whether to extend Anders to juvenile cases, the Supreme Court noted that the court of appeals was reluctant to allow an attorney to withdraw because the juvenile, unlike a criminal defendant, could not then proceed pro se. Id. at 299. The Supreme Court determined, however, that “this limitation should not be an impediment to extending Anders to juvenile cases.” Id. It reasoned that if after an attorney and the court of appeals determines the appeal is without merit counsel is permitted to withdraw, the “juvenile would then have the ability to advance his or her appeal through a parent, legal guardian, next friend, or guardian ad litem.” Id. This basic maxim has not changed over the years. Accordingly, for these reasons, this Court will continue to follow the Texas Supreme Court’s decision in In re D.A.S. rather than extending the Texas Supreme Court’s decision in In re P.M. to Anders appeals in juvenile cases.

In the Matter of J.L.C., a Juvenile Page 3 Supreme Court. Id. Any petition for review should comply with the requirements of

Rule 53.2 of the Texas Rules of Appellate Procedure. See TEX. R. APP. P. 53.2.

Notwithstanding counsel's discharge, counsel must send J.L.C. and his guardian

a copy of our decision, notify them of J.L.C.’s right to file a pro se petition for review. See

In re Schulman, 252 S.W.3d at 409 n.22. Because a juvenile proceeding is quasi-criminal in

nature, we will also require counsel to send this Court a letter certifying counsel's

compliance with Texas Rule of Appellate Procedure 48.4. See TEX. R. APP. P. 48.4.

TOM GRAY Chief Justice

Before Chief Justice Gray, Justice Davis, and Justice Scoggins Affirmed Opinion delivered and filed August 8, 2018 [CV06]

In the Matter of J.L.C., a Juvenile Page 4