in the Matter of O. D. L., a Juvenile

• Court: Court of Appeals of Texas
• Decided: December 21, 2010
• Docket: 13-09-00537-CV
• Status: Published

Opinion

NUMBER 13-09-537-CV

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI - EDINBURG

IN THE MATTER OF O.D.L., A JUVENILE

On appeal from the Juvenile Court of Victoria County, Texas.

MEMORANDUM OPINION Before Justices Rodriguez, Benavides, and Vela Memorandum Opinion by Justice Vela

Appellant O.D.L., a juvenile, was convicted of aggravated sexual assault on June

4, 2007. He was committed to the Texas Youth Commission under a determinate

sentence for a period of seven years. After O.D.L. reached the age of eighteen, the

State sought to transfer him to the Institutional Division of the Texas Department of Criminal Justice for the completion of his determinate sentence. The trial court held a

hearing, taking into consideration the evidence that was before it at the time, which

included a psychological evaluation and the recommendation of the individuals who had

worked with O.D.L. while he was at the Texas Youth Commission. The trial court

transferred O.D.L. to the custody of the Texas Department of Criminal Justice-Institutional

Division for completion of his seven-year sentence. We affirm.

I. ANDERS BRIEF

O.D.L. was originally represented by Lawrence Elliott who filed an Anders brief

and a motion to withdraw as counsel. See Anders v. California, 386 U.S. 738, 744

(1967). Elliott died during the pendency of the appeal. The case was abated, and Luis

Martinez was then appointed as new counsel for O.D.L. Martinez has also informed this

Court that he believes the appeal is frivolous and has likewise filed a motion to withdraw

as counsel.

In re D.A.S., 973 S.W.2d 296, 298 (Tex. 1998) (orig. proceeding), applied the

procedures enumerated in Anders to juvenile matters, noting that A[a]lthough juvenile

cases are classified as civil proceedings, they are quasi-criminal in nature.@ Pursuant to

Anders v. California, 386 U.S. 738, 744 (1967), O.D.L.=s first 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.

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) (AIn Texas, an Anders brief

2 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.BCorpus Christi

2003, no pet.)); Stafford v. State, 813 S.W.2d 503, 510 n.3 (Tex. Crim. App. 1991).

O.D.L.=s second appointed counsel concurs with the original brief filed that there are no

arguable bases for appeal.

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

Op.] 1978), O.D.L.=s first-appointed counsel carefully discussed why, under controlling

authority, there are no errors in the trial court=s judgment. Each counsel has informed

this Court that he has: (1) examined the record and found no arguable grounds to

advance on appeal, (2) served a copy of the brief and counsel=s motion to withdraw on

O.D.L., and (3) informed O.D.L. of his right to review the record and to file a pro se

response.1 See Anders, 386 U.S. at 744; Stafford, 813 S.W.2d at 510 n.3; see also In re

Schulman, 252 S.W.3d at 409 n.23. More than an adequate period of time has passed,

and O.D.L. has not filed a pro se response. See In re Schulman, 252 S.W.3d at 409.

II. INDEPENDENT REVIEW

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

proceedings to determine whether the case is wholly frivolous. Penson v. Ohio, 488 U.S.

1 The Texas Court of Criminal Appeals has held that Athe pro se response need not comply with the rules of appellate procedure in order to be considered. Rather, the response should identify for the court those issues which the indigent appellant believes the court should consider in deciding whether the case presents any meritorious issues.@ In re Schulman, 252 S.W.3d 403, 409 n.23 (Tex. Crim. App. 2008) (quoting Wilson v. State, 955 S.W.2d 693, 696-97 (Tex. App.BWaco 1997, no pet.)).

3 75, 80 (1988). We have reviewed the entire record and counsel=s brief and have found

nothing that would arguably support an appeal. See Bledsoe v. State, 178 S.W.3d 824,

826-28 (Tex. Crim. App. 2005) (ADue to the nature of Anders briefs, by indicating in the

opinion that it considered the issues raised in the briefs and reviewed the record for

reversible error but found none, the court of appeals met the requirement of Texas Rule of

Appellate Procedure 47.1.@); Stafford, 813 S.W.2d at 509. Accordingly, we affirm the

judgment of the trial court.

III. MOTION TO WITHDRAW

In accordance with Anders, O.D.L.=s attorney has asked this Court for permission

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

Schulman, 252 S.W.3d at 408 n.17 (citing Jeffery v. State, 903 S.W.2d 776, 779-80 (Tex.

App.BDallas 1995, no pet.) (noting that A[i]f an attorney believes the appeal is frivolous, he

must withdraw from representing the appellant. To withdraw from representation, the

appointed attorney must file a motion to withdraw accompanied by a brief showing the

appellate court that the appeal is frivolous@) (citations omitted)). We grant appellant=s

second-appointed counsel=s motion to withdraw.2 Within five days of the date of this

Court=s opinion, counsel is ordered to send a copy of the opinion and judgment to O.D.L.

and to advise him of his right to file a petition for review in the Texas Supreme Court. 3

2 We dismiss Lawrence Elliott=s motion to withdraw as moot. 3 No substitute counsel will be appointed. Should O.D.L. wish to seek further review of this case, he must either retain an attorney to file a petition for review or file a pro se petition for review. Within five days of the date of this Court's opinion, counsel is ordered to send a copy of the opinion and judgment to

4 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).

ROSE VELA Justice

Delivered and filed the 21st day of December, 2010.

appellant and to advise appellant of his right to file a petition for further review. See TEX. FAM. CODE ANN. ' 56.01(a) (Vernon Supp. 2010); see also TEX. R. APP. P. 48.4 (requiring, in criminal cases, the attorney representing a defendant on appeal to send the client a copy of the court of appeals' opinion and judgment within five days); 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).