in the Matter of K.M. ( 2008 )

COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 2-07-389-CV
IN THE MATTER OF K.M.
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FROM THE 323RD DISTRICT COURT OF TARRANT COUNTY
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MEMORANDUM OPINION 1
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Appellant K.M. was adjudicated delinquent on October 1, 2007 for
misdemeanor assault-bodily injury. He appealed from this judgment of
delinquency. According to Appellant’s brief, Appellant’s disposition was
deferred until December 2007, when he was placed on probation for one year.
Appellant has not appealed from the disposition order, and neither the
disposition order nor a record of the final disposition proceedings, if any,
appears in the record on appeal.
1
… See Tex. R. App. P. 47.4.
Appellant’s court-appointed appellate counsel has filed a motion to
withdraw as counsel and a brief in support of that motion. In the brief, counsel
avers that, in his professional opinion, this appeal is frivolous. 2 Counsel’s brief
and motion meet the requirements of Anders v. California 3 by presenting a
professional evaluation of the record demonstrating why there are no reversible
grounds on appeal and referencing any grounds that might arguably support the
appeal. 4 This court provided Appellant and his mother the opportunity to file
a pro se brief, but they have not done so. The State also did not file a brief.
In our duties as a reviewing court, we must conduct an independent
evaluation of the record to determine whether counsel is correct in determining
that the appeal is frivolous. 5 Only then may we grant counsel’s motion to
withdraw.6
2
… See In re D.A.S., 973 S.W.2d 296, 297 (Tex. 1998) (orig.
proceeding) (holding that Anders procedures apply to juvenile appeals).
3
… 386 U.S. 738, 87 S. Ct. 1396 (1967).
4
… See Mays v. State, 904 S.W.2d 920, 922–23 (Tex. App.—Fort Worth
1995, no pet.).
5
… See Stafford v. State, 813 S.W.2d 503, 511 (Tex. Crim. App. 1991);
Mays, 904 S.W.2d at 923.
6
… See Penson v. Ohio, 488 U.S. 75, 83–84, 109 S. Ct. 346, 351–52
(1988).
2
Our review of the record reveals no jurisdictional defects. The juvenile
court has jurisdiction over a child who is alleged to have engaged in delinquent
conduct.7 Appellant and his trial counsel stipulated that Appellant was fifteen
years old at the time of trial. 8 Appellant and his trial counsel also stipulated
that he resides in Tarrant County.
Our review of the record also shows that the petition to adjudicate is not
defective and that it provided sufficient notice to Appellant.9 Service in this
case was also proper. 10
Appellant’s mother attended the hearing.11 Appellant was represented by
counsel from the date of the detention hearing through the date of the
judgment of delinquency and also has counsel on appeal.12 Additionally,
7
… See Tex. Fam. Code Ann. § 51.04(a) (Vernon 2002).
8
… See id. § 51.02(2)(A) (stating a “child” is a person who is ten years
of age or older but under seventeen years of age).
9
… See id. § 53.04(d) (setting forth requirements of petition to
adjudicate); In re A.B., 868 S.W.2d 938, 940–41 (Tex. App.—Fort Worth
1994, no writ) (discussing notice requirements for petition to adjudicate).
10
… See Tex. Fam. Code Ann. § 53.06(a)(1) (Vernon 2002) (requiring that
child be served with summons); In re D.W.M., 562 S.W.2d 851, 852–53 (Tex.
1978) (requiring that child be served with summons and that summons
affirmatively appear in record).
11
… See Tex. Fam. Code Ann. § 51.115(a) (Vernon 2002).
12
… See id. § 51.10 (Vernon Supp. 2008).
3
Appellant’s waivers of his rights comport with section 51.09 of the family
code. 13
The evidence is legally and factually sufficient to support adjudication.14
Further, based on the record, Appellant would be unable to prove by a
preponderance of the evidence that but for his trial counsel’s errors, the result
of the trial would have been different.15
Because our independent review of the record reveals no reversible error,
we agree with counsel’s professional determination that an appeal challenging
adjudication would be frivolous. Accordingly, we grant counsel’s motion to
withdraw in this case and affirm the trial court’s judgment of delinquency.
PER CURIAM
PANEL: DAUPHINOT, J; CAYCE, C.J.; and MCCOY, J.
DELIVERED: October 2, 2008
13
… See id. § 51.09 (Vernon 2002).
14
… See In re J.D.P., 85 S.W.3d 420, 422 (Tex. App.—Fort Worth 2002,
no pet.) (providing legal sufficiency standard); In re B.P.H., 83 S.W.3d 400,
407 (Tex. App.—Fort W orth 2002, no pet.) (providing factual sufficiency
standard).
15
… See Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052,
2064 (1984); In re R.D.B., 102 S.W.3d 798, 800 (Tex. App.—Fort Worth
2003, no pet.).
4