In the Matter of M.M., a Juvenile v. the State of Texas

• Court: Court of Appeals of Texas
• Decided: August 29, 2024
• Docket: 05-24-00109-CV
• Status: Published

Opinion

Dismiss and Opinion Filed August 29, 2024

In The Court of Appeals Fifth District of Texas at Dallas No. 05-24-00109-CV

IN THE MATTER OF M.M., A JUVENILE

On Appeal from the 304th Judicial District Court Dallas County, Texas Trial Court Cause No. JD-21-01085

MEMORANDUM OPINION Before Justices Partida-Kipness, Goldstein, and Miskel Opinion by Justice Miskel M.M. appeals the trial court’s order transferring him from the Texas Juvenile

Justice Department (TJJD) to the Texas Department of Criminal Justice (TDCJ).

M.M. was adjudicated delinquent for aggravated assault with a deadly weapon and

two counts of aggravated robbery and given a seven-year determinate sentence

probated for seven years. The State later filed a motion to modify disposition

alleging M.M. violated the conditions of his probation. Following a hearing, the trial

court modified the disposition and ordered M.M. committed to the custody of TJJD

for seven years, with a possible transfer to TDCJ. Before M.M. turned nineteen,

TJJD recommended M.M.’s transfer to TDCJ to serve the remainder of his sentence. Following an evidentiary hearing, the trial court ordered M.M. to be transferred.

M.M.’s trial counsel filed a notice of appeal on M.M.’s behalf and his appointed

appellate counsel has since filed a brief, stating that in his professional opinion the

appeal is without merit and that there are no arguable grounds for reversal. See

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

Anders procedures are appropriate in appeals from juvenile transfer hearings.

See In Re D.A.S., 973 S.W.2d 296, 297 (Tex. 1998) (orig. proceeding) (Because

Anders protects juveniles’ statutory right to counsel on appeal, we hold the

procedures enumerated in Anders apply to juvenile appeals); Matter of C.S., No. 05-

23-00951-CV, 2024 WL 2075841, at * 1 (Tex. App—Dallas May 9, 2024, no pet.)

(mem. op.) (applying Anders procedures in appeal from juvenile transfer order); In

re R.M., III, No. 13-09-00316-CV, 2010 WL 467414, at *1 (Tex. App—Corpus

Christi–Edinburg Feb. 11, 2010, no pet.) (mem. op.) (same). An attorney has an

ethical obligation to refuse to prosecute a frivolous appeal. In re Schulman, 252

S.W.3d 403, 407 (Tex. Crim. App. 2008). Under the Anders procedure, if appointed

counsel finds the appeal frivolous, counsel must file a brief explaining why the

appeal lacks merit. Anders, 386 U.S. 744-45; Schulman, 252 S.W.3d at 407; D.A.S.,

973 S.W.2d at 297.

–2– Here, M.M.’s counsel provided M.M. with a copy of the Anders brief and

advised him of his right to examine the record and file his own response.1 This Court

separately provided M.M. with a copy of the brief and notified him of his right to

examine the record and file a response. The State filed a letter brief agreeing with

M.M.’s counsel that the appeal is without merit. M.M. has not responded.

In his brief, M.M.’s counsel demonstrated that he reviewed the record and

concluded the appeal was without merit and frivolous. See Anders, 386 U.S. at 744.

He states that in his professional opinion no arguable grounds for reversal exist and

that any appeal would therefore lack merit. See id. Counsel’s brief meets the

minimum Anders requirements by presenting a professional evaluation of the record

and stating why there are no arguable grounds for reversal on appeal. See id.;

Schulman, 252 S.W.3d at 406–07. We have independently reviewed the record and

counsel’s brief, and we agree the appeal is frivolous and without merit.

In his brief, counsel requests that he be permitted to withdraw as appellate

counsel; no separate motion was filed with the Court. A court-appointed attorney’s

duties to a client in a juvenile case continue through the filing of a petition for review,

and a motion to withdraw may be premature unless good cause is shown. See Matter

of T.M., 583 S.W.3d 836, 838 (Tex. App.—Dallas 2019, no pet.) (extending In re

P.M., 520 S.W.3d 24, 27 (Tex. 2016) (per curiam) to Anders appeals in juvenile

1 M.M.. is over the age of eighteen and able to file a pro se response in this appeal. –3– cases); In re A.H., 530 S.W.3d 715, 717 (Tex. App.—Fort Worth 2017, no pet.)

(same). Counsel has not shown good cause for withdrawing from his representation

of M.M., and, as a result, his obligations have not been discharged. See T.M., 583

S.W.3d at 838. If M.M., after consulting with counsel, desires to file a petition for

review, counsel should timely file with the Texas Supreme Court “a petition for

review that satisfies the standards for an Anders brief.” See P.M., 520 S.W.3d at 27–

28. Accordingly, we deny counsel’s request to withdraw.

We affirm the trial court’s transfer order.

/Emily Miskel/ EMILY MISKEL 240109f.p05 JUSTICE

–4– Court of Appeals Fifth District of Texas at Dallas JUDGMENT

IN THE MATTER OF M.M., A On Appeal from the 304th Judicial JUVENILE District Court, Dallas County, Texas Trial Court Cause No. JD-21-01085. No. 05-24-00109-CV Opinion delivered by Justice Miskel. Justices Partida-Kipness and Goldstein participating.

In accordance with this Court’s opinion of this date, the trial court’s transfer order is AFFIRMED.

Judgment entered this 29th day of August, 2024.

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