                                 Fourth Court of Appeals
                                         San Antonio, Texas
                                    MEMORANDUM OPINION

                                             No. 04-19-00844-CV

                                       IN THE INTEREST OF C.C.

                      From the 229th Judicial District Court, Duval County, Texas
                                      Trial Court No. DC-18-53
                           Honorable Selina Nava Mireles, Judge Presiding

Opinion by:       Beth Watkins, Justice

Sitting:          Patricia O. Alvarez, Justice
                  Luz Elena D. Chapa, Justice
                  Beth Watkins, Justice

Delivered and Filed: May 6, 2020

ABATED AND REMANDED

           The trial court terminated appellant L.C.’s parental rights to his child, C.C., under

subsection 161.001(b)(1)(Q) of the Texas Family Code. 1 See TEX. FAM. CODE ANN.

§ 161.001(b)(1)(Q). L.C. now appeals.

           L.C.’s court-appointed appellate attorney filed a brief containing a professional evaluation

of the record in accordance with Anders v. California, 386 U.S. 738 (1967). See In re P.M., 520

S.W.3d 24, 27 n.10 (Tex. 2016) (recognizing Anders procedures apply in parental termination

cases). In his brief, counsel discusses several potential appellate issues, including ineffective

assistance of counsel and evidentiary sufficiency issues, but concludes none have merit and this



1
  To protect the privacy of the minor child, we refer to the child and the parent by their initials. TEX. R. APP. P.
9.8(b)(2).
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appeal is frivolous. The brief meets the requirements of Anders. See Anders, 386 U.S. at 744. As

required, counsel provided L.C. with a copy of the brief and informed him of his right to review

the record and file his own pro se brief. See Kelly v. State, 436 S.W.3d 313, 319 (Tex. Crim. App.

2014); In re D.L., No. 04-19-00274-CV, 2019 WL 5405911, at *1 (Tex. App.—San Antonio Oct.

23, 2019, no pet.) (mem. op.). L.C. filed a pro se brief, and the State filed a waiver of its right to

file a brief.

        Once we determine that the procedural requirements of Anders have been satisfied, we

engage in an independent review of the briefs and the record to determine whether: (1) we agree

with counsel’s conclusion that the appeal is wholly frivolous, in which case we issue an opinion

stating there is no reversible error; or (2) we conclude that arguable grounds for appeal exist, in

which case we remand the cause to the trial court. See In re A.L.H., No. 04-18-00153-CV, 2018

WL 3861695, at *2 (Tex. App.—San Antonio Aug. 15, 2018, no pet.) (mem. op.). If we determine

that a nonfrivolous ground for appeal exists, we must abate the appeal and remand the case to the

trial court for appointment of new counsel. See id.; see also Nichols v. State, 954 S.W.2d 83, 86

(Tex. App.—San Antonio 1997, no writ) (noting we cannot order counsel to brief and argue an

appeal that counsel considers frivolous). The new attorney is then required to file a brief raising

the nonfrivolous ground we have identified, as well as any additional grounds that the attorney

discovers. See In re A.L.H., 2018 WL 3861695, at *2. Only after the new attorney has briefed the

issues on appeal will we address the merits of those issues. See In re Commitment of M.A.C., No.

04-18-00865-CV, 2019 WL 3208819, at *1 (Tex. App.—San Antonio July 17, 2019, no pet.)

(mem. op.).

        After reviewing the briefs and the record, we conclude the appeal is not wholly frivolous

and there are arguable ground(s) for appeal, including whether the evidence supports a finding that

L.C. “knowingly engaged in” criminal conduct for which he was convicted and imprisoned. See


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TEX. FAM. CODE § 161.001(b)(1)(Q); In re C.D.E., 391 S.W.3d 287, 300–01 (Tex. App.—Fort

Worth 2012, no pet.) (holding evidence legally insufficient to support termination under subsection

Q where “the record contains no evidence from which the trial court could have formed a firm

conviction or belief that Father ‘knowingly [as opposed to negligently] engaged in criminal

conduct’ . . . that resulted in his conviction”) (emphasis and alteration in original).

       We note that L.C.’s appellate counsel did not file a motion to withdraw and was not

required to do so to satisfy his duties under Anders. See In re P.M., 520 S.W.3d at 27 (noting that

“an Anders motion to withdraw brought in the court of appeals, in the absence of additional

grounds for withdrawal, may be premature”). Nonetheless, because we cannot order counsel to

brief and argue an appeal he considers frivolous, we order L.C.’s current appellate counsel

withdrawn, abate the appeal, and remand the cause to the trial court for the appointment of new

appellate counsel. See In re A.L.H., 2018 WL 3861695, at *2. The trial court shall, within ten days

from the date of our opinion and order, appoint a new attorney on appeal to present all arguable

grounds of error, including but not limited to the nonfrivolous ground noted in this opinion. See

id. at *3. After new appellate counsel has been appointed, we will notify the parties of the briefing

schedule for L.C.’s appeal. See id.

                                                   Beth Watkins, Justice




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