in the Matter of v. C. A., a Child

• Court: Court of Appeals of Texas
• Decided: May 24, 2018
• Docket: 13-17-00580-CV
• Status: Published

Opinion

NUMBER 13-17-00580-CV

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI - EDINBURG

IN THE MATTER OF V.C.A., A CHILD

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

MEMORANDUM OPINION Before Chief Justice Valdez and Justices Benavides and Longoria Memorandum Opinion by Justice Benavides

V.C.A.,1 a child, has filed this appeal of her sentence to confinement to the Texas

Juvenile Justice Department (TJJD). V.C.A. was charged and adjudicated of the offense

of assault of a public servant, a third-degree felony. See TEX. PENAL CODE ANN. §

22.01(a), (b)(1) (West, Westlaw through 2017 1st C.S.).

V.C.A. pleaded true to the allegation during an adjudication hearing. See TEX.

1 Pursuant to Rule 9.8(b) of the Texas Rules of Appellate Procedure, we will utilize aliases when referring to the parties to this proceeding. See TEX. R. APP. P. 9.8(b); TEX. FAM. CODE ANN. § 56.01(j) (West, Westlaw through 2017 1st C.S.). FAM. CODE ANN. § 54.03 (West, Westlaw through 2017 1st C.S.). During her disposition

hearing the following month, the trial court took judicial notice of the court’s file, including

a report from a psychologist. The court also heard testimony from the complainant,

V.C.A.’s probation officers, V.C.A.’s guardian, V.C.A.’s Court Appointed Special

Advocate, and V.C.A. herself. Following the close of testimony, the trial court sentenced

V.C.A. to commitment in TJJD for an indeterminate sentence and made a finding that

V.C.A. has behavioral health or other special needs that cannot be met with the resources

available in the community. See id. §§ 54.04(d)(2), 54.04013 (West, Westlaw through

2017 1st C.S.). V.C.A. filed this notice of appeal. V.C.A.’s court-appointed appellate

counsel has filed an Anders brief. See Anders v. California, 386 U.S. 738, 744 (1967).

We affirm.

I. ANDERS BRIEF

Pursuant to Anders v. California, V.C.A.’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 2003, no pet.)); Stafford v. State, 813 S.W.2d 503, 510 n.3 (Tex. Crim. App. 1991)

(en banc).

2 In compliance with High v. State and Kelly v. State, V.C.A.’s counsel carefully

discussed why, under controlling authority, there is no reversible error in the trial court’s

judgment. See High v. State, 573 S.W.2d 807, 813 (Tex. Crim. App. [Panel Op.] 1978);

Kelly v. State, 436 S.W.3d 313, 319–22 (Tex. Crim. App. 2014). V.C.A.’s appellate

counsel also notified this Court that he: (1) notified V.C.A. that he has filed an Anders

brief and a motion to withdraw; (2) provided V.C.A. with copies of both pleadings; (3)

informed V.C.A. of her rights to file a pro se response,2 review the record preparatory to

filing that response, and seek discretionary review if we conclude that the appeal is

frivolous; (4) provided V.C.A. with a copy of the appellate record; and (5) informed V.C.A.

that the pro se response, if any, should identify for the Court those issues which she

believes the Court should consider in deciding whether the case presents any meritorious

issues. See Anders, 386 U.S. at 744; Kelly, 436 S.W.3d at 319–20; see also In re

Schulman, 252 S.W.3d at 409 n.23. V.C.A. did not file 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 case is wholly frivolous. Penson v. Ohio, 488

U.S. 75, 80 (1988). A court of appeals has two options when an Anders brief is filed.

After reviewing the entire record, it may: (1) determine that the appeal is wholly frivolous

and issue an opinion explaining that it finds no reversible error; or (2) determine that there

2 The Texas Court of Criminal Appeals has held that “the 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 to case presents any meritorious issues.” See In re Schulman, 252 S.W.3d 403, 407 n.23 (Tex. Crim. App. 2008) (quoting Wilson v. State, 955 S.W.2d 693, 696–97 (Tex. App.—Waco 1997, no pet.)).

3 are arguable grounds for appeal and remand the case to the trial court for appointment

of new appellate counsel. Bledsoe v. State, 178 S.W.3d 824, 826–27 (Tex. Crim. App.

2005). If the court finds arguable grounds for appeal, it may not review those grounds

until after new counsel has briefed those issues on appeal. Id.

We have reviewed the entire record, counsel’s brief, and we have found nothing

that would arguably support an appeal. See id. at 827–28 (“Due 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.

There is no reversible error in the record. Accordingly, the judgment of the trial court is

affirmed.

III. MOTION TO WITHDRAW

In accordance with Anders, V.C.A.’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 Jeffrey v. State, 903 S.W.2d 776, 779–80 (Tex.

App.—Dallas 1995, no pet.) (“[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 counsel’s

motion to withdraw. Within five days of this Court’s opinion, counsel is ordered to send

a copy of this opinion and this Court’s judgment to V.C.A. and advise her of her right to

4 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 judgment of the trial court.

GINA M. BENAVIDES, Justice

Delivered and filed the 24th day of May, 2018.

3 No substitute counsel will be appointed. Should appellant wish to seek further review of this

case by the Texas Court of Criminal Appeals, she must either retain an attorney to file a petition for discretionary review or file a pro se petition for discretionary review. Any petition for discretionary review must be filed within thirty days from the date of either this opinion or the last timely motion for rehearing or timely motion for en banc reconsideration that was overruled by this Court. See TEX. R. APP. P. 68.2. Any petition for discretionary review must be filed with the clerk of the Texas Court of Criminal Appeals, see id R. 68.3, and should comply with the requirements of the Texas Rule of Appellate Procedure 68.4. See id. R. 68.4.