### In The Court of Appeals Sixth Appellate District of Texas at Texarkana

______________________________

No. 06

- 1 0

- 00 002

- CV

______________________________

IN THE INTEREST OF S.A.C., A CHILD

On Appeal from the 307th Judicial District Court

Gregg County, Texas

Trial Court No. 2008

- 2517

- DR

Before Morriss, C.J., Carter and Moseley, JJ.

Memorandum Opinion by Chief Justice Mo rriss2 MEMORANDUM OPINION

Carmelo Cervantes has filed an appeal from the termination of his parental rights to S.A.C.,

an infant now approximately fourteen months of age. Counsel timely filed the mandated issues to

be raised on appeal and a motion for new trial. At a brief hearing, the trial cour t denied the

motion, declared the appeal was frivolous under Section 263.405 of the Texas Family Code, and

found Cervantes not indigent (and thus not entitled to a free record). The trial court, however,

continued Cervantes’ appointed trial counsel as app ointed counsel on appeal.

In our order of January 29, 2010, we declined to immediately rule on the motion to dismiss

because the record of the hearing on new trial provided no information which could show this

Court whether the frivolousness determinati on was proper. We

, therefore

, provided time and

opportunity for Cervantes to try to get a reporter’s record or for counsel to file a brief containing

whatever issues might be viable based on the appellate record as it presently exists before this

C ourt. Any such action was to be taken, and this Court informed of it, before March 1, 2010.

We warned at that time that failure to proceed with the appeal could cause the case to be dismissed.

We have again contacted counsel by telephone. Counsel has advised that no record will

be forthcoming and that no brief will be filed.

It remains the duty of a nonindigent litigant to request and pay for whatever record he or

she may need to pursue an appeal. See T EX

. R. A PP

. P. 34.6, 35.3(b). That has not occurred her e.

When no reporter’s record is filed due to an appellant’s fault, we may consider issues or points that3

do not require a reporter’s record for decision. T EX

. R. A PP

. P. 37.3(c).

Here, however, no such issues or points have been presented to this C our t, and counsel has

concluded that filing a brief would be futile. Here, in the absence of a reporter’s record, no

reversible error can be shown. As this is a civil case, we are authorized to dismiss the appeal for

want of prosecution in the absence of a brief. T EX

. R. A PP

. P. 38.8(a)(1).

We further note that

, although the filing of Anders briefs has been a procedure followed in

a number of cases, 1 neither the Texas Supreme Court nor the United States Supreme Court has

held that counsel is required to fi le an Anders brief 2 in a parental

- rights termination case on

finding that no arguable error exists or that the appellate courts are obliged to review the record for

arguable error. L.D.T.

, 161 S.W.3d at 730.

We also recognize that

, under these circumstan ces, the appellant has acquiesced in a

situation that prevents this C ourt from reviewing most issues on their merits, and also prevents us

from reviewing the trial court ’s determination that this appeal is frivolous.

1 See In re L.D.T

., 161 S.W.3d 728, 730

– 31 (Tex. App.

— Beaumont 2005, no pet.) ; In re D.E.S ., 135 S.W.3d 326, 329 (Tex. App.

— Houston [14th Dist.] 2004, no pet.); In re K.D., 127 S.W.3d 66, 67 (Tex. App.

— H ouston [1st Dist.] 2003, no pet.); Porter v. Tex

. Dep ’ t of Protective & Regulatory Servs ., 1 05 S.W.3d 52, 56 (Tex. App.

— Corpus Christi 2003, no pet.); In re K.M ., 98 S.W.3d 774, 777 (Tex. App.

— Fort Worth 2003, no pet.); In re E.L.Y ., 69 S.W.3d 838, 841 (Tex. App.

—

Waco 2002, no pet.); In re K.S.M ., 61 S.W.3d 632, 634 (Tex. App.

— Tyler 2001, no pet. ).

2 Anders v. California , 386 U.S. 738 (1967).4

We dismiss t he appeal for wan t of prosecution.

Josh R. Morriss, III

Chief Justice

Date Submitted: March 11, 2010

Date Decided: March 12, 2010