                                           NO. 07-00-0264-CV

                                     IN THE COURT OF APPEALS

                             FOR THE SEVENTH DISTRICT OF TEXAS

                                              AT AMARILLO

                                                 PANEL D

                                     SEPTEMBER 20, 2001,
                                ______________________________

                            IN THE INTEREST OF AWT, MGT, AND JKT

                                                __________

                   FROM THE 121ST DISTRICT COURT OF TERRY COUNTY;

                        NO. 14,686; HON. KELLY G. MOORE, PRESIDING
                             _______________________________

Before BOYD, C.J., QUINN, AND REAVIS, J.J.

        Jerry Wayne Todd appeals from an order terminating the parental relationship

between himself and his children AWT, MGT and JKT. The trial court appointed Todd

counsel to represent him on appeal. Thereafter, his appointed counsel filed an Anders1

brief and motion to withdraw.2 In the brief, appellate counsel certified that he 1) diligently

reviewed the appellate record and 2) concluded the appeal was meritless. So too did

counsel state that he informed his client, Todd, of his conclusion and of Todd’s right to

review the record and file a pro se response to the brief and motion. This court also

contacted Todd, in writing, to inform him of counsel’s motion and brief and of Todd’s right


        1
            Anders v. California, 386 U.S.738, 87 S. Ct.1396, 18 L. Ed. 2d 493 (1967).
        2
        The trial court appointed appellant counsel to represent Todd via the directives contained in the
Texas Family Code. TEX. FAM. CODE ANN. § 107.013 (Vernon 1996) (stating that an indigent is entitled to
appointed counsel in proceedings to terminate the parental relationship).
to respond thereto after reviewing the record. Todd so responded, contending that his trial

counsel denied him effective assistance. For the reasons which follow, we affirm the

judgment.

       Anders

       We initially address whether appellate counsel may file an Anders brief in a civil

proceeding. Historically, the use of such briefs have been limited to appeals arising from

criminal convictions. In permitting appellate counsel to file an Anders brief, the Supreme

Court recognized that counsel, though appointed to represent the appellant, had no duty

to pursue a frivolous matter on appeal. Anders, 386 U.S. at 744, 87 S. Ct. at 1400 . Thus,

he was afforded the opportunity to withdraw after informing the court of his conclusion and

the effort made in arriving at that conclusion. Id.

       The rationale underlying Anders is no less applicable to a civil matter in which

counsel has been appointed to represent the appellant. Counsel remains obligated to

zealously pursue the rights and interests of his client. Yet, that obligation does not include

the task of arguing the frivolous. Indeed, to press a frivolous appeal would be to violate

not only rules of discipline applicable to attorneys, see TEX .      DISCIPLINARY   R. PROF’L

CONDUCT 3.01, reprinted in TEX . GOV ’T CODE ANN ., tit. 2, subtit. G. App. A. (Vernon Supp.

1998)(Tex. STATE BAR R. art. X, §9)(stating that a lawyer shall not bring or defend a

frivolous proceeding or assert a frivolous issue), but also the rules of appellate procedure.

See TEX . R. APP . P. 45 (permitting the court to assess damages if an appeal is found to be

frivolous). To strike a balance between these competing duties, we see no reason why the

procedure utilized in Anders v. California and its progeny should not be available to


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appointed counsel faced with the prospect of conducting a meritless appeal, irrespective

of whether the appeal involves a criminal or civil matter.

       Application of Anders

       As previously mentioned, counsel was appointed to represent Todd on appeal and

ultimately filed an Anders brief and motion to withdraw. In doing so, he told to the court

and his client not only that he diligently reviewed the record and applicable authorities but

also concluded that there existed no reversible error. So too did he explain why the issues

his research disclosed as potentially viable were not.       Moreover, Todd was afforded

opportunity to respond to the brief and motion and actually filed two responses.

       Next, as we are obligated to do when the proceeding is criminal, we conducted our

own independent review of the record to discover arguable grounds of appeal. Stafford

v. State, 813 S.W.2d 503, 511 (Tex. Crim. App. 1991). Upon conducting that review, we

determined that Todd 1) had notice of the grounds proffered for terminating his parental

rights and 2) had opportunity to defend against those grounds through the use of counsel,

the presentation of evidence, and the cross-examination of adverse witnesses.

Furthermore, the evidence presented at the trial legally and factually supported the jury’s

finding that Todd engaged in conduct or knowingly placed the children with persons who

engaged in conduct which endangered the physical or emotional well-being of the children.

So too did the record contain evidence upon which the jury could clearly and convincingly

determine that termination of Todd’s parental rights was in the best interest of the children.

Moreover, with regard to the arguable grounds raised and then negated by appellate




                                              3
counsel, we agree that they were either waived or cured due to the failure to object or the

admission of admissible evidence.

        Finally, as to Todd’s ex parte contention that his trial counsel was ineffective, we

hold that the allegation does not merit reversal for several reasons.3 First, save for the

allegations regarding counsel’s failure to object, none of the supposed misconduct appears

of record. Rather, it involves representations allegedly made to Todd outside of trial and

the appellate record. This is fatal to these contentions. See Tong v. State, 25 S.W.3d

707, 714 (Tex. Crim. App. 2000) (stating that the supposed ineffectiveness must be

established by the record before the reviewing court).

        Second, with regard to the allegation that counsel failed to object to inadmissible

hearsay, the very same evidence (i.e. evidence regarding the abuse inflicted by the

mother’s boyfriend upon the children) was later proffered by and received through non-

hearsay sources. Thus, the alleged inadmissible evidence was simply cumulative of

admissible evidence and, as such, we are unable to conclude that had counsel objected,

the outcome of the trial would have differed. Id. at 712 (requiring one who claims

ineffectiveness to show prejudice). Nor can we conclude that failing to object to the

evidence regarding Todd’s criminal conduct established deficient performance. Authority

holds that intentional criminal activity which exposed the parent to incarceration is relevant



        3
           We assume, without deciding, that claims of ineffective assistance may be raised viz-a-viz the
action of an attorney appointed to represent one undergoing the termination of his parental rights. In re
J.M.S., 43 S.W.3d 60, 63 (Tex. App.–Houston [1st Dist.] 2001, no pet. hist.) (holding that an appellant can
assert such a claim); but see, In re B.B., 971 S.W.2d 160, 172 (Tex. App.–Beaumont 1998, pet. denied) (and
cases cited therein holding to the contrary). Indeed, logic suggests that if statute entitles an indigent to
counsel and the counsel appointed to represent him was less than reasonably competent, then the indigent
for all practical purposes did not receive the entitlement granted him by statute.

                                                     4
evidence tending to establish a course of conduct endangering the emotional and physical

well being of the child. Allred v. Harris County Child Welfare Unit, 615 S.W.2d 803, 806

(Tex. App.–Houston [1st Dist.] 1980,writ ref’d n.r.e.) (wherein evidence of the father’s

commission of numerous robberies was admitted).            Thus, the evidence regarding

appellant’s recent history of criminal behavior (a history to which he generally admitted)

was admissible, and, it being admissible, counsel was not obligated to object to it to avoid

claims of ineffective assistance. Tong v. State, 25 S.W.3d at 714 (counsel’s actions fell

within the wide range of reasonably professional assistance). Consequently, we find that

Todd’s allegations of ineffectiveness are unfounded.

       Having found no arguable merit to the appeal, we affirm the order terminating

Todd’s parental rights.



                                                        Per Curiam




Publish.




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