In re M.W.

1

IN THE MATTER OF M.W., A JUVENILE

No. 05-22-00556-CV

Court of Appeals of Texas, Fifth District, Dallas

July 28, 2023

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

Before Justices Molberg, Reichek, and Breedlove

MEMORANDUM OPINION

KEN MOLBERG JUSTICE

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 § 51.03^[1]and included a statement that the court found from the evidence beyond a reasonable 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 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).

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).

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 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 form^[4] because, by failing to discuss objections made at...