                            Fourth Court of Appeals
                                   San Antonio, Texas
                                  DISSENTING OPINION
                                       No. 04-18-00475-CV

                          IN THE 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

        DISSENTING OPINION ON MOTION FOR EN BANC RECONSIDERATION
                 OF ORDER STRIKING COUNSEL’S ANDERS BRIEF

Opinion by: Luz Elena D. Chapa, Justice
Dissenting Opinion by: Sandee Bryan Marion, Chief Justice, joined by Karen Angelini, Justice
and Marialyn Barnard, Justice

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., 04-03-00096-CV, 2003 WL 21157944, at *3 (Tex. App.—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, however, the attorney
Dissenting Opinion                                                                       04-18-00475-CV


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 the brief filed in this case

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 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 is unable to assert the evidence is legally or

factually insufficient 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 notes “[t]he case came to a jury trial” and the court

entered judgment “based on the jury’s verdict.” I would give the attorney the benefit of the doubt

over an obvious typographical error.



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Dissenting Opinion                                                                     04-18-00475-CV


        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 trial as opposed to a bench trial.

        Although the majority’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

practical 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 tools necessary to satisfy the

majority’s expectations in rebriefing.

        For example, the majority asserts the brief should have “refer[red] the court to any legal

issue that might possibly support the appeal and explain — with citations to the record and

authority relating 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 supported 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 does 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

objections 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 overruled



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Dissenting Opinion                                                                      04-18-00475-CV


evidentiary objections and state he cannot “refer the court to any legal 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?

        Finally, 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, once again, 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

something 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 is charged with the 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 brief 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 the



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Dissenting Opinion                                                               04-18-00475-CV


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 contrary, I respectfully dissent.

                                               Sandee Bryan Marion, Chief Justice




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