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

Opinion

Preliminary Opinion and Opinion Filed July 28, 2023

In The Court of Appeals Fifth District of Texas at Dallas No. 05-22-00556-CV

IN THE MATTER OF M.W., A JUVENILE

On Appeal from the 305th Judicial District Court Dallas County, Texas Trial Court Cause No. JD-20-00351-X

MEMORANDUM OPINION Before Justices Molberg, Reichek, and Breedlove Opinion by Justice Molberg M.W., a juvenile, appeals the trial court’s order of adjudication and judgment

of disposition finding her delinquent for two offenses—assault causing bodily

injury, a charge for which she pleaded true, and assault of a public servant, which

she contested, and which the trial court found true. See TEX. FAM. CODE § 54.03

(adjudication hearing); TEX. PENAL CODE § 22.01(A)(1) (assault causing bodily

injury); id. § 22.01(B)(1) (assault of public servant); see generally TEX. FAM. CODE

§§ 51.01–61.107 (Juvenile Justice Code).

On March 16, 2020, the Dallas County District Attorney’s Office filed a two-

count petition against M.W., alleging that on or about January 17, 2020, in Dallas County, Texas, M.W. did (1) “intentionally, knowingly or recklessly cause bodily

injury to another, namely [K.C.], in violation of a penal law of this State punishable

by confinement in jail,” to wit: Texas Penal Code § 22.01; and did (2) “intentionally,

knowingly or recklessly cause bodily injury to another, namely Brittani Simmons, a

public servant, and [M.W.] knew that [Simmons] was a public servant in the lawful

discharge of an official duty or [M.W.] committed the offense, in retaliation or on

account of an exercise of an official power or performance of an official duty, by

[Simmons] as a public servant, in violation of a penal law of this State punishable

by imprisonment,” to wit: Texas Penal Code § 22.01.

The adjudication and disposition hearing was held on March 2, 2022 before

an associate judge. In that hearing, following the testimony of multiple witnesses,

including M.W., the trial court accepted M.W.’s plea of true to the allegations in

count one and found true the allegation in count two, except that the court concluded

M.W. committed the count two offense knowingly or recklessly, but not

intentionally.

On March 7, 2022, the court entered its order of adjudication and judgment of

disposition with no placement. Among its other contents, the order declared M.W.

a child engaged in delinquent conduct as defined under Texas Family Code § 51.031

and included a statement that the court found from the evidence beyond a reasonable

1 According to that section, delinquent conduct includes, but is not limited to, “conduct, other than a traffic offense, that violates a penal law of this state or of the United States punishable by imprisonment or by confinement in jail.” TEX. FAM. CODE § 51.03(a)(1). –2– doubt that M.W. did commit the two alleged offenses. See TEX. PENAL CODE

§§ 22.01(A)(1), (B)(1). The order also placed M.W. on probation for a period of nine

months in the custody of her mother, subject to the terms and conditions of probation

attached thereto, and ordered that M.W. complete thirty-five hours of community

service restitution on the dates and locations designated by M.W.’s probation officer.

M.W.’s trial counsel timely filed a notice of appeal on M.W.’s behalf.2

The trial court allowed M.W.’s trial counsel to withdraw and appointed M.W.

new appellate counsel. M.W.’s new appellate counsel filed on M.W.’s behalf

another notice of appeal on June 7, 2022,3 and on August 17, 2022, filed an Anders

brief concluding that, after a diligent review of the record, the appeal is frivolous

and without merit. See Anders v. California, 386 U.S. 738, 744–45 (1967); see also

In re D.A.S., 973 S.W.2d 296, 297 (Tex. 1998) (orig. proceeding) (extending Anders

procedures to juvenile cases, which are “quasi-criminal in nature”).

Anders outlines a procedure for ensuring that an indigent defendant’s right to

counsel on appeal is honored when his appointed attorney concludes the appeal is

without merit. 386 U.S. at 744–45. In a typical Anders situation, if the appointed

attorney finds, after a conscientious examination of the record, that the case is

“wholly frivolous,” he should so advise the appellate court, request permission to

2 M.W.’s March 24, 2022 notice of appeal stated M.W. “desires to appeal her adjudication in count 2.” 3 M.W.’s June 7, 2022 notice of appeal stated M.W. “desires to appeal from all portions of the judgment.” We render no opinion on the timeliness or effect of the June 7, 2022 notice of appeal, if any, when no issue in that regard has been presented to us for review, and when our jurisdiction over this appeal is clearly established by the timely filing of M.W.’s March 24, 2022 notice of appeal. –3– withdraw, and file a brief referring to anything in the record that might arguably

support the appeal. See id. at 744; In re Schulman, 252 S.W.3d 403, 406 (Tex. Crim.

App. 2008); see also McCoy v. Court of Appeals of Wis., 486 U.S. 429, 437–39

(1988).

In some cases, a request to withdraw in the intermediary appellate courts may

be premature. See In re P.M., 520 S.W.3d 24, 27–28 (Tex. 2016) (concluding, in

termination of parental rights case, appointed counsel’s obligations can be satisfied

by filing a petition for review that satisfies standards for an Anders brief); In re T.M.,

583 S.W.3d 836, 838 (Tex. App.—Dallas 2019, no pet.) (concluding, in juvenile

case, appointed counsel’s duties had not yet been discharged and stating, “If

appellant, 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.’”) (quoting In re P.M., 520 S.W.3d at 27–28).

Here, M.W.’s counsel has not filed a motion to withdraw, but has filed an

Anders brief concluding that, after a diligent review of the record, the appeal is

frivolous and without merit. See Anders, 386 U.S. at 744–45.

In reviewing an Anders brief, our duty is to determine whether there are any

arguable grounds for reversal and, if there are, to remand the case to the trial court

for the appointment of new counsel. Bledsoe v. State, 178 S.W.3d 824, 827 (Tex.

Crim. App. 2005); In re D.D., 279 S.W.3d 849, 850 (Tex. App.––Dallas 2009, pet.

denied).

–4– The purpose of an Anders brief is to satisfy the appellate court that the

appointed attorney’s motion to withdraw is based upon a conscientious and thorough

review of the law and facts. Kelly v. State, 436 S.W.3d 313, 318 (Tex. Crim. App.

2014). The Anders brief should reflect that the appointed attorney has adequately

researched the case and used due diligence investigating potential error before

requesting to withdraw from further representation. In re Schulman, 252 S.W.3d at

407. Texas courts further require an Anders brief to refer to anything in the record

that might arguably support the appeal, with citations to the record and legal

authority. High v. State, 573 S.W.2d 807, 811 (Tex. Crim. App. [Panel Op.] 1978);

see also Stafford v. State, 813 S.W.2d 503, 510 n.3 (Tex. Crim. App. 1991). The

Court of Criminal Appeals has specifically held that an Anders brief has certain

requirements:

[I]n contested cases where “frivolous appeal” briefs are filed by court- appointed counsel . . . [courts] . . . should not . . . accept such briefs unless they discuss the evidence adduced at the trial, point out where pertinent testimony may be found in the record, refer to pages in the record where objections were made, the nature of the objection, the trial court’s ruling, and discuss either why the trial court’s ruling was correct or why the appellant was not harmed by the ruling of the court.

High, 573 S.W.2d at 813 (emphasis added). If done correctly, an Anders brief can

be more difficult and time-consuming to prepare than an ordinary appellate brief.

Banks v. State, 341 S.W.3d 428, 431 (Tex. App.—Houston [1st Dist.] 2009, order);

Wilson v. State, 40 S.W.3d 192, 196 (Tex. App.—Texarkana 2001, order); see also

United States v. Wagner, 158 F.3d 901, 902 (5th Cir. 1998).

–5– When an appellate court receives an Anders brief from an appellant’s court-

appointed attorney asserting that no arguable grounds for appeal exist, we must

determine that issue independently by conducting our own review of the entire

record. Anders, 386 U.S. at 744; Stafford, 813 S.W.2d at 511. If we conclude, after

conducting an independent review, that “appellate counsel has exercised

professional diligence in assaying the record for error” and agree that the appeal is

frivolous, we should affirm the trial court’s judgment. In re Schulman, 252 S.W.3d

at 409; Crowe v. State, 595 S.W.3d 317, 320 (Tex. App.—Dallas 2020, no pet.).

However, if we conclude either that appellate counsel has not adequately discharged

the constitutional duty to review the record for any arguable error, or that the appeal

is not wholly frivolous, we abate the appeal and return the cause to the trial court for

the appointment of new appellate counsel. Meza, 206 S.W.3d at 689; Crowe, 595

S.W.3d at 320.

In Arevalos v. State, we stated, “Of course, in order to evaluate which option

to exercise, this Court must have the benefit of a brief that fully complies with the

requirements of Anders.” 606 S.W.3d 912, 916 (Tex. App.—Dallas 2020, order),

subsequent proceeding, No. 05-19-00466-CR, 2020 WL 5087778 (Tex. App.—

Dallas Aug. 28, 2020, order) (mem. op., not designated for publication), disp. on

merits, 2021 WL 2948582 (Tex. App.—Dallas June 30, 2021, no pet.) (mem. op.,

not designated for publication). In Arevalos, we twice concluded counsel’s Anders

brief did not meet High’s requirements and was deficient as to form because

–6– appellant’s appointed appellate counsel did not discuss objections made at trial. See

Arevalos, 606 S.W.3d at 916 (striking brief and reaching this conclusion after noting

appellant’s appointed appellate counsel did not discuss the objections made at trial

by appellant’s trial counsel); Arevalos, 2020 WL 5087778, at *4 (striking counsel’s

second Anders brief; reaching same conclusion after noting appellant’s appointed

appellate counsel did not discuss any objections made at trial; and stating, “Nothing

in Anders or High limits [the discussion regarding objections] to only defense

objections” and “[n]or should any language in our prior opinion be read as limiting

appointed counsel’s duty to only the defense objections.”).

Similar to our conclusion in Arevalos, 606 S.W.3d at 916, we conclude that

M.W.’s counsel’s brief is deficient as to form4 because, by failing to discuss

objections made at trial, the brief fails to satisfy High’s requirements, which required

counsel, among other things, to “refer to pages in the record where objections were

made, the nature of the objection, the trial court’s ruling, and discuss either why the

trial court’s ruling was correct or why the appellant was not harmed by the ruling of

the court.” See High, 573 S.W.2d at 813. Here, the record contains a total of at least

seventeen objections, and the court’s rulings on those objections were adverse to

M.W. at least nine times, with the trial court sustaining the State’s objections at least

seven times and overruling M.W.’s appointed trial counsel’s objections at least

4 See Arevalos, 606 S.W.3d at 916 n.4 (explaining Anders briefs can exhibit deficiencies in both form and substance and giving examples of each). –7– twice. As we did in Arevalos, we view counsel’s failure to discuss the objections

and rulings at trial as evidence that counsel failed to make a thorough and

professional evaluation of the record. See Arevalos, 606 S.W.3d at 916 (citing

Crowe, 595 S.W.3d at 320).

We have two other concerns regarding M.W.’s counsel’s current Anders brief.

First, we note that M.W.’s counsel may have filed his current Anders brief without

a complete record, as the reporter’s transcript from the March 2, 2022 adjudication

and disposition proceeding indicates the trial court admitted State’s Exhibit 1, but

that exhibit is not included in the reporter’s transcript.5 An incomplete record, if in

fact this record is incomplete, would certainly add to our concern about whether

counsel conducted a conscientious examination of the record as required. See

Okafor v. State, No. 05-98-00590-CR, 1999 WL 142081, at *1 (Tex. App.—Dallas

Mar. 17, 1999, order) (per curiam) (not designated for publication) (“Because

counsel filed an Anders brief without reviewing the entire record, we must conclude

that counsel failed to conduct a conscientious examination of the record as

required”), disp. on merits, 1999 WL 1034628 (Tex. App.—Dallas Nov. 16, 1999,

no pet.) (not designated for publication). Second, while we acknowledge the current

Anders brief reflects that M.W.’s appointed appellate counsel attempted to satisfy

his responsibilities under Kelly, 436 S.W.3d at 318–20, by sending the necessary

5 Given the description of that exhibit, it is possible, though not entirely clear, that the information admitted as State’s Exhibit 1 is included as part of the clerk’s record. –8– information “to M.W.,” because this is a juvenile proceeding, we believe M.W.’s

rights may be better protected if counsel sends the necessary information under Kelly

to M.W.’s mother, in whose custody and supervision M.W. was placed under the

trial court’s order. See, e.g., In re K.A.E., 647 S.W.3d 791, 792 (Tex. App.—San

Antonio 2022, no pet.) (citing Kelly and noting that the juvenile appellant’s counsel

who filed the Anders brief provided “appellant and his father” with copies of the

brief and counsel’s motion to withdraw, informing appellant of his right to review

the record and file a pro se brief, and a motion for pro se access to the appellate

record). Moreover, to enable this Court to better fulfill its own responsibilities under

Kelly, 436 S.W.3d at 320–22, we encourage but do not require counsel to either file

an amended docketing statement with M.W.’s mother’s address or to otherwise

provide this Court with M.W.’s mother’s current and/or last known address.

Because we conclude M.W.’s counsel’s Anders brief does not fully comply

with the Anders requirements, we cannot yet address whether counsel has made a

thorough and complete professional evaluation of the record. Consequently, we

strike the filed Anders brief and order M.W.’s appointed appellate counsel to file a

new brief. See Arevalos, 606 S.W.3d at 916. In doing so, we express no opinion as

to whether there is, or is not, a potentially meritorious issue in this record;

determining whether the form of an Anders brief is sufficient is an inquiry that is

legally distinct from determining whether, in substance, counsel has correctly

concluded the appeal is wholly frivolous. See id., n.4.

–9– CONCLUSION Accordingly, by separate order, we strike the brief filed in this case. We order

appellant’s counsel, within fourteen days of the date of this opinion, to either (1) file

a brief that addresses arguable issues found within the record, or (2) if, after a

thorough and professional review of the record, counsel identifies no such arguable

issues, file an Anders brief that complies with the requirements of High, 573 S.W.2d

at 813 and Kelly, 436 S.W.3d at 318–20. Additionally, per Texas Rule of Appellate

Procedure 34.6(d), we direct the official court reporter to prepare, certify, and file in

the appellate court a supplemental reporter’s record containing State’s Exhibit 1

within seven days of the date of this opinion or, in the alternative, direct the trial

court to specify the location in the clerk’s record in which the document(s) contained

in State’s Exhibit 1 may be found.

Any motion for an extension of time to comply with our order will be looked

upon with disfavor.

/Ken Molberg/ 220556f.p05 KEN MOLBERG JUSTICE

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