in the Interest of K.A.P. and D.M.P., Children ( 2018 )

Opinion filed August 9, 2018
In The
Eleventh Court of Appeals
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No. 11-18-00065-CV
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IN THE INTEREST OF K.A.P. AND D.M.P., CHILDREN
On Appeal from the 29th District Court
Palo Pinto County, Texas
Trial Court Cause No. C47239
MEMORANDUM OPINION
This is an appeal from an order in which the trial court terminated the parental
rights of the mother and the father of K.A.P. and D.M.P. The mother filed a notice
of appeal. We dismiss the appeal.
The mother’s court-appointed counsel has filed a motion to withdraw and a
supporting brief in which she professionally and conscientiously examines the
record and applicable law and concludes that the appeal is frivolous. The brief meets
the requirements of Anders v. California, 386 U.S. 738 (1967), by presenting a
professional evaluation of the record demonstrating why there are no arguable
grounds to be advanced. See In re Schulman, 252 S.W.3d 403, 406–08 (Tex. Crim.
App. 2008); High v. State, 573 S.W.2d 807, 812 (Tex. Crim. App. [Panel Op.] 1978).
In light of a recent holding by the Texas Supreme Court, however, an Anders motion
to withdraw “may be premature” if filed in the court of appeals under the
circumstances presented in this case. See In re P.M., 520 S.W.3d 24, 27 (Tex. 2016).
The court in P.M. stated that “appointed counsel’s obligations can be satisfied by
filing a petition for review that satisfies the standards for an Anders brief.” Id. at
27–28.
Appellant’s counsel provided Appellant with a copy of the brief, the motion
to withdraw, and an explanatory letter. Counsel also informed Appellant of her
rights to review the record and file a pro se response to counsel’s brief. In
compliance with Kelly v. State, 436 S.W.3d 313, 318–20 (Tex. Crim. App. 2014),
counsel provided Appellant with a copy of the appellate record. We conclude that
Appellant’s counsel has satisfied her duties under Anders, Schulman, and Kelly.
We note that Appellant filed a pro se response to counsel’s Anders brief. In
her response, Appellant expresses her love for the children, her desire to be reunited
with them, and an explanation for her actions. While we do not doubt the sincerity
of Appellant’s pro se response, we are unable to consider the factual assertions in her
response because appellate courts cannot consider evidence that appears in an
appellate brief but was not presented to the trial court. See Perry v. S.N., 973 S.W.2d
301, 303 (Tex. 1998). Following the procedures outlined in Anders and Schulman,
we have independently reviewed the record in this cause, and we agree that the
appeal is without merit and should be dismissed. See Schulman, 252 S.W.3d at 409.
2
However, in light of P.M., we deny the motion to withdraw that was filed by
Appellant’s court-appointed counsel. See P.M., 520 S.W.3d at 27.
Counsel’s motion to withdraw is denied, and the appeal is dismissed.
PER CURIAM
August 9, 2018
Panel consists of: Willson, J.,
Bailey, J., and Wright, S.C.J.1
Willson, J., not participating.
1
Jim R. Wright, Senior Chief Justice (Retired), Court of Appeals, 11th District of Texas at Eastland,
sitting by assignment.
3