# Fourth Court of Appeals **San Antonio, Texas**
DISSENTING OPINION
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IN TH E INTEREST OF N.F.M. and S.R.M. From the 57th Judicial District Court, Bexar County, Texas Trial Court No. 2017PA00070 Honorable John D. Gabriel, Jr., Judge Presiding 

### D ISSENTING 

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### M OTION FOR 

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### R ECONSIDERATION OF 

### O RDER 

### S TRIKING 

### C OUNSEL 

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### A NDERS 

### B RIEF Opinion by: Luz Ele na D. Chapa, Justice Dissenting Opinion by: Sandee Bryan Marion, Chief Justice , joined by Karen Angelini, Justice and Marialyn Barnard, J ustice Sitting en banc: Sandee Bryan Marion, Chief Justice Karen Angelini, Justice Marialyn Barnard, Justice Rebeca C. Martinez, Justice Patricia O. Alvarez, Justice Luz Elena D. Chapa, Justice Irene Rios, Justice Delivered and Filed: December 19, 2018 The constitutional “ liberty interest of parents in the care, custody, and control of their children is perhaps the oldest of the fundamental liberty interests recognized by [the Supreme]
Court .’” In re R.R. , 04

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— San Antonio May 21, 2003, no pet.) ( mem. op.) (quoting Troxel v. Granville , 530 U.S. 57, 65 (2002) (plurality opinion) ). When an attorney is appointed to represent an indigent parent in an appeal of an order terminating parental rights , and the attorney believes the appeal is frivolous, how ever, the attorneyDissenting Opinion 04

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- faces an ethical dilemma. “ He is ethically bound both to competently and zealously represent his client and to not [] file a frivolous pleading. ” Id

. For this reason, we permit appointed attorneys to file Anders briefs in parental termination appeals. Id . at *4. The motion by appellant’s attorney requesting en banc reconsideration of this court’s order striking his Anders brief expresses the attorney’s confusion over this court’s striking of his brief when this court has accepted similar Anders briefs in numerous prior appeals . I believe the attorney expresses a valid concern, and I agree this court previously has accepted numerous similar Anders briefs. Furthermore, for the reasons explained below, I believe t he brief filed in this case contains a “professional evaluation of the record ,” “discuss[es] the evidence introduced at trial ... with read y references to the record,” and “demonstrate[s] that counsel has conscientiously examined the record and determined th at the appeal is [] frivolous

. ” Stafford v. State , 813 S.W.2d 503, 510 n.3 (Tex. Crim. App. 1991); High v. State , 573 S.W.2d 807, 812 (Tex. Crim. App. [Panel Op.] 1978); Nichols v. State , 954 S.W.2d 83, 85 (Tex. App.

— San Antonio 1997, order ) (per curiam). Because the majority holds to the contrary, I respectfully dissent. The stricken Anders brief contains twenty

- eight pages summarizing the procedural history of the case and the testimony of the nine witnesses called to testify at trial with appropriate citations to the record. The brief then states the attorney i s unable to assert the ev idence i s legally or factually in sufficient to support the termination, and the attorney “after thorough examination, can find no errors warranting reversal that can be legitimately supported by the record.” Although the majority raises a concern that the analysis makes reference to the “court’s” findings as opposed to the “jury’s” findings, the brief previously note s “[t]he case came to a jury trial” and the court
enter ed judgment “based on the jury’s verdict.” I would give the attorney the benefit of the doubt

over a n obvious typographical error.Dissenting Opinion 04

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- The majority distinguishes fourteen of the fifteen appeals specifically listed in the en banc motion in which similar Anders briefs were accepted because those appeals were from bench trials and the instant appeal is from a jury trial . I disagree with the implication that a different standard
governs an Anders brief in a jury tria l as opposed to a bench trial. Although the maj ority’ s opinion contains a summary of broad statements made in prior opinions regarding the required contents of an Anders brief and analyzes the importance of complying with those broad statements , the opinion does not provide the attorney with any practi cal guidance in how the brief should be revised to meet the majority’s expectations. Since this court has previously accepted numerous, similar Anders briefs, I believe some practical guidance by the majority is warranted to ensure the attorney has the to ols necessary to satisfy the majority’s expectation s i n rebriefing

. For example, the majority asserts the brief should have “refer[ r ed] the court to any legal issue that might possibly support the appeal and explain

— with citations to the record and authority rel ating to that legal issue

— why counsel has concluded the issue is frivolous. ” The stricken Anders brief, however, states the attorney could “find no errors warranting reversal that can be legitimately suppor ted by the record.” I would interpret this statement as a representation by the attorney that he cannot “refer the court to any legal issue that might possibly support the appeal” because , in his opinion, none exist. The majority also notes, “the brief do es not discuss or even mention the key parts of the jury trial that occurred in this case

— such as jury selection, the jury charge, and/ or the charge conference

— and does not discuss generally or specifically the numerous, overruled evidentiary objection s at trial.” Based on this statement, the attorney is left to wonder if he need only mention that he reviewed jury selection, the jury charge, the charge conference, and the overruledDissenting Opinion 04

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- evidentiary objections and state he cannot “refer the court to any lega l issue that might possibly support the appeal.” Or, will an Anders brief always be inadequate if an attorney does not refer the court to legal issues “that might possibly support the appeal” even if the attorney does not believe any such issues exist?
Fi nally, the majority notes the stricken Anders brief refers to the attorney’s inability to find the evidence legally and factually insufficient but concludes “the substantive section of the brief contains no citations to the record and authority relevant to that legal issue.” The attorney does, however, provide citations to the record in summarizing the evidence which the attorney relies on to state the evidence is sufficient. So, o nce agai n, based on this single sentence, the attorney is left to wonder what authority the majority believes he should have cited. Would citing to the authority relevant to the standards of review applicable to a sufficiency challenge be sufficient or would

some thing more be required? I recognize the Texas Supreme Court established a House Bill 7 Task Force for Procedural Rules in Suits Affecting the Parent

- Child Relationship Filed by a Governmental Entity on July 10, 2007. The HB 7 Task Force i s charged with th e responsibility of advising the Supreme Court regarding rules to be adopted or revised for post

- trial proceedings in cases involving the termination of the parent

- child relationship. The HB 7 Task Force has specifically been directed to draft Anders brie f procedures in appeals of parental termination cases. Until those procedures are adopted or this court adopts guidelines for Anders briefs in parental termination appeals, I would have accepted the Anders brief filed in this appeal. In my opinion, the stricken Anders brief contains a “professional evaluation of the record,” “discuss[es] the evidence introduced at trial ... with ready references to the record,” and “demonstrate[s] that counsel has conscientiously examined the record and determined that theDissenting Opinion 04

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- appeal is [] frivolous.” Stafford , 813 S.W.2d at 510 n.3; High , 573 S.W.2d at 812; Nichols , 954 S.W.2d at 85. Accordingly, this court should have accepted the brief and proceeded to conduct our own “independent examination of the record to determine whether we agree with counsel’s conclusion that the appeal is frivolous.” Nichols , 954 S.W.2d at 86. Because the majority holds to the c ontrary, I respectfully dissent. Sandee Bryan Mari on, Chief Justice