in the Matter of J.T.S.M., a Child

• Court: Court of Appeals of Texas
• Decided: February 9, 2023
• Docket: 13-22-00398-CV
• Status: Published

Opinion

NUMBER 13-22-00398-CV

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI – EDINBURG

IN THE MATTER OF J.T.S.M., A CHILD

On appeal from the 25th District Court of Lavaca County, Texas.

MEMORANDUM OPINION

Before Justices Benavides, Tijerina, and Peña Memorandum Opinion by Justice Peña

J.T.S.M., a juvenile, pleaded “true” to the State’s allegations that he engaged in

three instances of delinquent conduct. See TEX. PENAL CODE ANN. §§ 28.03(b)(4)(A)

(criminal mischief over $2500 but under $30,000), 30.02(c)(2) (burglary of a building),

31.07 (unauthorized use of a motor vehicle). The trial court placed J.T.S.M. on probation

on April 16, 2021, for a term of eighteen months. The State then filed a motion to modify

order of adjudication and judgment of disposition on April 28, 2022. On June 22, 2022, the trial court modified the terms of J.T.S.M.’s community supervision and extended his

probation to December 19, 2023.

The State filed a second motion to modify on July 11, 2022. Following a hearing

on July 26, 2022, the trial court found appellant to be a delinquent and committed him to

the Texas Juvenile Justice Department for an indeterminate period. See TEX. FAM. CODE

ANN. § 54.04. Appellant’s court-appointed counsel has filed an Anders brief. See Anders

v. California, 386 U.S. 738, 744 (1967). 1 We affirm.

I. ANDERS BRIEF

Pursuant to Anders v. California, appellant’s court-appointed appellate counsel

has filed a brief and a motion to withdraw with this Court, stating that his review of the

record yielded no grounds of error upon which an appeal can be predicated. See id.

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

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–Edinburg 2003, no pet.))); Stafford v. State, 813 S.W.2d 503, 510 n.3 (Tex. Crim.

App. 1991).

1 See In re D.A.S., 973 S.W.2d 296, 297, 299 (Tex. 1998) (orig. proceeding). In D.A.S., the Texas

Supreme Court concluded that Anders procedures protect juveniles’ statutory right to counsel on appeal in delinquency cases and so held that those procedures apply in juvenile cases. Id. at 297; see Anders v. California, 386 U.S. 738, 744 (1967).

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

Op.] 1978) and Kelly v. State, 436 S.W.3d 313, 319–20 (Tex. Crim. App. 2014),

appellant’s counsel carefully discussed why, under controlling authority, there is no

reversible error in the trial court’s judgment. Appellant’s counsel has informed this Court

in writing that he: (1) notified appellant and his grandparents2 that counsel has filed an

Anders brief and a motion to withdraw; (2) provided the appellant and his grandparents

with copies of both pleadings; (3) informed the appellant and his grandparents of

appellant’s rights to file a pro se response, to review the record prior to filing that

response, and to seek discretionary review if we conclude that the appeal is frivolous;

and (4) provided appellant and his grandparents with a form motion for pro se access to

the appellate record that only requires appellant’s signature and date with instructions to

file the motion within ten days. See Anders, 386 U.S. at 744; Kelly, 436 S.W.3d at 319–

320; see also In re Schulman, 252 S.W.3d at 408–09. An adequate amount of time has

passed, and appellant has not requested the record nor filed a pro se response.

II. INDEPENDENT REVIEW

Upon receiving an Anders brief, we must conduct a full examination of all the

proceedings to determine whether the appeal is wholly frivolous. Penson v. Ohio, 488

U.S. 75, 80 (1988). We have reviewed the record and counsel’s brief, and we have found

no reversible error. 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 it considered the

issues raised in the brief and reviewed the record for reversible error but found none, the

2 The record indicates that J.T.S.M.’s maternal grandparents R.G. and E.G. are his current legal guardians. Accordingly, J.T.S.M.’s counsel copied them on all legal correspondence, including these appellate briefs and motions.

3 court of appeals met the requirements of Texas Rule of Appellate Procedure 47.1.”);

Stafford, 813 S.W.2d at 509.

III. MOTION TO WITHDRAW

In accordance with Anders, appellant’s attorney has asked this Court for

permission to withdraw as counsel. See Anders, 386 U.S. at 744; see also In re

Schulman, 252 S.W.3d at 408 n.17. We grant counsel’s motion to withdraw. Within five

days of the date of this Court’s opinion, counsel is ordered to send a copy of this opinion

and this Court’s judgment to appellant and his grandparents and to advise them of

appellant’s right to file a petition for discretionary review. 3 See TEX. R. APP. P. 48.4; see

also In re Schulman, 252 S.W.3d at 412 n.35; Ex parte Owens, 206 S.W.3d 670, 673

(Tex. Crim. App. 2006).

IV. CONCLUSION

We affirm the trial court’s judgment.

L. ARON PEÑA JR. Justice

Delivered and filed on the 9th day of February, 2023.

3 We note that any further appeal must be taken to the Texas Supreme Court. See TEX. FAM. CODE

ANN. § 56.01(a) (providing that appeal is to be taken to the courts of appeals and the Texas Supreme Court); see also Ex parte Valle, 104 S.W.3d 888, 889–90 (Tex. Crim. App. 2003) (observing that the Texas Supreme Court, and not the Texas Court of Criminal Appeals, has jurisdiction on direct appeal of juvenile matters except in very limited circumstances).

No substitute counsel will be appointed. Should appellant wish to seek further review of his case by the Texas Supreme Court, he must either retain an attorney to file a petition for review or file a pro se petition for review. Any petition for review must be filed within forty-five days after the date of either this opinion or the last ruling by this Court on all timely-filed motions for rehearing or en banc reconsideration. TEX. R. APP. P. 53.7(a). Any petition for review must comply with the requirements of Rule 53.2 of the Texas Rules of Appellate Procedure. Id. R. 53.2.