Opinion
No. 04-21-00261-CV
05-11-2022
In the MATTER OF K.A.E.
APPELLANT ATTORNEY: Patrick B. Montgomery, Attorney at Law, 111 Soledad Street, Suite 300, San Antonio, TX 78205, Kristopher Anthony Espinoza, 244 Laclede, San Antonio, TX 78214. APPELLEE ATTORNEY: Joe D. Gonzales, Bexar County District Attorney, 101 W. Nueva St., Suite 370, San Antonio, TX 78205, Nathan E. Morey, 101 W. Nueva, Suite 525, San Antonio, TX 78205.
APPELLANT ATTORNEY: Patrick B. Montgomery, Attorney at Law, 111 Soledad Street, Suite 300, San Antonio, TX 78205, Kristopher Anthony Espinoza, 244 Laclede, San Antonio, TX 78214.
APPELLEE ATTORNEY: Joe D. Gonzales, Bexar County District Attorney, 101 W. Nueva St., Suite 370, San Antonio, TX 78205, Nathan E. Morey, 101 W. Nueva, Suite 525, San Antonio, TX 78205.
Sitting: Rebeca C. Martinez, Chief Justice, Irene Rios, Justice, Liza A. Rodriguez, Justice
Opinion by: Liza A. Rodriguez, Justice This is an appeal from the trial court's order waiving jurisdiction and transferring appellant to criminal court under section 54.02(a) of the Texas Family Code. When he was fifteen years of age, appellant is alleged to have shot and killed the seventy-one-year-old complainant.
Appellant's court-appointed appellate attorney has filed a motion to withdraw and a brief in which counsel asserts there are no meritorious issues to raise on appeal. See In re D.A.S. , 973 S.W.2d 296, 299 (Tex. 1998) (holding Anders procedures apply to juvenile appeals). The brief meets the applicable requirements. See Anders v. California , 386 U.S. 738, 744, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967) ; High v. State , 573 S.W.2d 807, 811 (Tex. Crim. App. [Panel Op.] 1978) ; Gainous v. State , 436 S.W.2d 137, 138 (Tex. Crim. App. 1969). Counsel provided appellant and his father with copies of the brief and counsel's motion to withdraw, informing appellant of his right to review the record and file a pro se brief. See Kelly v. State , 436 S.W.3d 313, 319 (Tex. Crim. App. 2014). Counsel also provided a motion for pro se access to the appellate record. See id. Appellant was given time to file his own brief; however, the time for filing such a brief has expired and no pro se brief has been filed.
After reviewing the record and counsel's brief, we find no reversible error and agree with counsel that the appeal is wholly frivolous. See Bledsoe v. State , 178 S.W.3d 824, 826-27 (Tex. Crim. App. 2005). However, we decline to grant counsel's motion to withdraw. In the context of parental termination appeals, the supreme court has held that the right to counsel extends to "all proceedings in [the Texas Supreme Court], including the filing of a petition for review." In re P.M. , 520 S.W.3d 24, 27 (Tex. 2016). The court emphasized that "[c]ourts have a duty to see that withdrawal of counsel will not result in foreseeable prejudice to the client." Id. According to the court, "[i]f a court of appeals allows an attorney to withdraw, it must provide for the appointment of new counsel to pursue a petition for review." Id. Thus, several Texas appellate courts have held this continued right to counsel applies equally in juvenile appeals. See In re J.E.W. , No. 12-19-00287-CV, 2020 WL 2988893, at *3 (Tex. App.—Tyler May 29, 2020, pet. denied) ; In re T.M. , 583 S.W.3d 836, 838 (Tex. App.—Dallas 2019, no pet.) ; In re C.F. , No. 03-18-00008-CV, 2018 WL 2750007, at *2 (Tex. App.—Austin June 8, 2018, no pet.) ; In re A.H. , 530 S.W.3d 715, 717 (Tex. App.—Fort Worth 2017, no pet.) ; In re A.C. , No. 01-15-00932-CV, 2016 WL 1658777, at *1 (Tex. App.—Houston [1st Dist.] Apr. 26, 2016, no pet.). We join these sister courts and hold that appellant's continued right to counsel applies in this case. Accordingly, we conclude counsel's obligations to appellant have not yet been discharged. If appellant, after consulting with counsel, desires to file a petition for review, counsel should timely file with the Texas Supreme Court "a petition for review that satisfies the standards for an Anders brief." See In re P.M. , 520 S.W.3d at 27-28. For these reasons, we deny counsel's motion to withdraw.
In contrast with these appellate courts, the Waco Court of Appeals has held the supreme court's holding in In re P.M. does not extend to juvenile appeals. See In re J.L.C. , 582 S.W.3d 442, 444 n.1 (Tex. App.—Waco 2018, no pet.).
We affirm the trial court's order.