in the Matter of J.L.C., a Juvenile ( 2018 )

IN THE
TENTH COURT OF APPEALS
No. 10-18-00061-CV
IN THE MATTER OF J.L.C., A JUVENILE
From the County Court at Law No. 1
Johnson County, Texas
Trial Court No. J05776
OPINION
J.L.C. appeals the trial court's Order Modifying Disposition—Determinate
Sentence committing J.L.C. to the Texas Juvenile Justice Department for four years with
a possible transfer to the Texas Department of Criminal Justice. We affirm.
J.L.C.’s appellate attorney filed a motion to withdraw and an Anders brief in
support of the motion to withdraw, asserting that the appeal presents no issues of
arguable merit. See Anders v. California, 386 U.S. 738, 87 S. Ct. 1396, 18 L. Ed. 2d 493 (1967).
The procedures set forth in Anders are applicable to appeals in juvenile proceedings. See
In re D.A.S., 973 S.W.2d 296, 299 (Tex. 1998). Counsel advised J.L.C. and his guardian that
counsel had filed the motion and brief pursuant to Anders and provided J.L.C. a copy of
the record, advised J.L.C. and his guardian of the right to review the record and the right
to submit a response on J.L.C.’s behalf. See id. at 299. Neither J.L.C. nor his guardian
submitted a response.
Counsel asserts in the Anders brief that counsel has made a thorough review of the
appellate record for non-frivolous issues, including a review of the admonishments,
waiver of jury trial, sufficiency of the petition, the plea, and the waiver of and right to an
appeal in the initial adjudication and disposition hearings, and a review of the hearing,
reasonableness of the sentence, and the sufficiency of the evidence in the modification
hearing. After the review, counsel reluctantly concluded there was no non-frivolous
issue to raise in this appeal. Counsel's brief evidences a professional evaluation of the
record for error, and we conclude that counsel performed the duties required of
appointed counsel. See Anders, 386 U.S. at 744; High v. State, 573 S.W.2d 807, 812 (Tex.
Crim. App. 1978); see also In re Schulman, 252 S.W.3d 403, 407 (Tex. Crim. App. 2008).
Upon the filing of an Anders brief, as the reviewing appellate court, it is our duty
to independently examine the record to decide whether counsel is correct in determining
that an appeal is frivolous. See Anders, 386 U.S. at 744; Stafford v. State, 813 S.W.2d 503,
511 (Tex. Crim. App. 1991). Arguments are frivolous when they "cannot conceivably
persuade the court." McCoy v. Court of Appeals, 486 U.S. 429, 436, 108 S. Ct. 1895, 100 L.
Ed. 2d 440 (1988). Having carefully reviewed the entire record and the Anders brief, we
have determined that the appeal is frivolous. See Bledsoe v. State, 178 S.W.3d 824, 826-27
(Tex. Crim. App. 2005). Accordingly, we affirm the trial court's Order Modifying
Disposition—Determinate Sentence signed on February 14, 2018.
In the Matter of J.L.C., a Juvenile Page 2
Counsel's motion to withdraw from representation of J.L.C. is granted, and
counsel is discharged from representing J.L.C. in this appeal.1 Should J.L.C. wish to seek
further review of this case by the Texas Supreme Court, he or his guardian must either
retain an attorney to file a petition for review or must file a pro se petition for review. No
substitute counsel will be appointed. Any petition for review must be filed within 45
days from the date of this opinion or the last timely motion for rehearing or timely motion
for en banc reconsideration has been overruled by this Court. See TEX. R. APP. P. 53.7.
Any petition and all copies of the petition for review must be filed with the Clerk of the
1
Although some courts have decided to extend the decision in In re P.M. to Anders appeals in juvenile cases,
we do not. See, e.g. In re C.F., No. 03-18-00008-CV, 2018 Tex. App. LEXIS 4128 *2 fn.1 (Tex. App.—Austin
June 8, 2018, no pet. h.) (mem. op.); In re A.H., 530 S.W.3d 715, 717 (Tex. App.—Fort Worth 2017, no pet.);
In re A.C., Nos. 01-15-00931-CV, 01-15-00932-CV, 01-15-00933-CV, 2016 Tex. App. LEXIS 4285 (Tex. App.—
Houston [1st Dist.] Apr. 26, 2016, no pet.) (mem. op.). First, whereas the statutes in the Family Code
governing the appointment of counsel and counsel’s continued representation in State-initiated
termination cases provide no alternative but to appoint counsel and retain appointed counsel until the
appellate process is final, see TEX. FAM. CODE ANN. §§ 107.013; 107.016 (West 2014), the statutes in the
Juvenile Justice Code are different. See TEX. FAM. CODE ANN. §§ 51.10; 51.101 (West 2014). There are
different situations in which a juvenile may or must be represented by counsel. Id. Counsel may even be
waived in certain situations. See id. § 51.10. And, when counsel is appointed, counsel is not always required
to represent the child until “the case is terminated.” When a motion or petition is filed seeking to modify
a disposition by committing the child to the Texas Juvenile Justice Department, as we have in this case,
appointed counsel continues to represent the child only “until the court rules on the motion or petition….”
Compare TEX. FAM. CODE ANN. § 51.101 (a), (b), and (d) with (e) (West 2014). Second, the Texas Supreme
Court has already addressed whether the child is required to be represented by counsel after a court in an
Anders appeal has determined the appeal to be frivolous when it decided to extend the Anders procedures
to juvenile cases. See In re D.A.S., 973 S.W.2d 296 (Tex. 1998). When determining whether to extend Anders
to juvenile cases, the Supreme Court noted that the court of appeals was reluctant to allow an attorney to
withdraw because the juvenile, unlike a criminal defendant, could not then proceed pro se. Id. at 299. The
Supreme Court determined, however, that “this limitation should not be an impediment to extending
Anders to juvenile cases.” Id. It reasoned that if after an attorney and the court of appeals determines the
appeal is without merit counsel is permitted to withdraw, the “juvenile would then have the ability to
advance his or her appeal through a parent, legal guardian, next friend, or guardian ad litem.” Id. This
basic maxim has not changed over the years. Accordingly, for these reasons, this Court will continue to
follow the Texas Supreme Court’s decision in In re D.A.S. rather than extending the Texas Supreme Court’s
decision in In re P.M. to Anders appeals in juvenile cases.
In the Matter of J.L.C., a Juvenile Page 3
Supreme Court. Id. Any petition for review should comply with the requirements of
Rule 53.2 of the Texas Rules of Appellate Procedure. See TEX. R. APP. P. 53.2.
Notwithstanding counsel's discharge, counsel must send J.L.C. and his guardian
a copy of our decision, notify them of J.L.C.’s right to file a pro se petition for review. See
In re Schulman, 252 S.W.3d at 409 n.22. Because a juvenile proceeding is quasi-criminal in
nature, we will also require counsel to send this Court a letter certifying counsel's
compliance with Texas Rule of Appellate Procedure 48.4. See TEX. R. APP. P. 48.4.
TOM GRAY
Chief Justice
Before Chief Justice Gray,
Justice Davis, and
Justice Scoggins
Affirmed
Opinion delivered and filed August 8, 2018
[CV06]
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