JUVENILE APPEALS:ETHICAL CONSIDERATIONS IN

REPRESENTATION

THE SEVENTH ANNUAL JUVENILE LAW CONFERENCE

HOUSTON, TEXASSEPTEMBER 9 & 10, 2016

William M. Thursland Attorney At Law 440 Louisiana St., Ste. 1130 Houston, TX 77002 Tel.: (713) 655-0200 x 105

Fax: (713) 655-9035 Email: wmthursland@hotmail.com

I.

OVERVIEW

The purpose of this paper is not to provide an exhaustive review of the Rules of

Appellate Procedure but rather to give a general overview of the procedures involved in

appealing a juvenile delinquency case. I hope it also provides some practical tips for the

occasional appellate lawyer to effectively perfect and prosecute an appeal.

At the outset, it should be noted that the requirements governing the appeal of

civil cases “generally” apply. TFC §56.01(a) For this reason, discretionary appeals are

heard by the Texas Supreme Court and not the Court of Criminal Appeals.

II.

ADVISING YOUR CLIENT

Right to Appeal:

A child has a right to appeal; be represented by counsel and, if indigent, the right

to be represented by appointed counsel. TFC §56.01(d)(1)-(3) A direct appeal can be

taken from an order entered:

(A) respecting transfer of the child for prosecution as an adult;

(B) with regard to delinquent conduct or conduct indicating a need for

supervision;

(C) disposing of the case;

(D) respecting modification of a previous juvenile court disposition; or

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(E) by a juvenile court committing a child to a facility for the mentally ill or

intellectually disabled.1 TFC §56.01(c)(1)(A)-(E)

Section (A) allows direct appeals of certification orders. These appeals are

accelerated. This means the deadlines to file the notice of appeal and briefs are

shortened. In addition, appealing the certification order does not stay the criminal

proceedings pending disposition of the appeal. TFC §56.01(g-1) & (h)

It should also be noted that the State has the right to appeal orders entered in

determinate cases such as where the trial court grants a motion for new trial; dismisses a

petition or grants a motion to suppress. TFC §56.03(b)(1)-(5)

The Appellate Process:

After informing the respondent and his parents of his right to appeal, you should

discuss the appellate process and the procedural steps necessary to perfect the appeal.

Often clients have a rudimentary or no understanding of the appellate process.

This leads to unrealistic expectations of their prospects for relief. They believe the

appeal provides an opportunity to retry the case in front of a different fact finder. At a

minimum, they think it affords a chance to prove the decision in the lower court was

unjust. Therefore, the lawyer should explain the kinds of issues that can be appealed

and that the applicable appellate doctrines favor stability and disfavor reversals. Unless,

the client fully appreciates the tendency in law to favor stability and finality of

judgments, he may be overly optimistic about the likelihood of relief.

1 An order transferring a person to the custody of the Texas Dept. of Criminal Justice is also appealable. TFC §56.01(c)(2)

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There are many important factors to consider in deciding whether to appeal.

These factors include, but are certainly not limited to, the sufficiency of the evidence

admitted at trial to support the adverse judgment, any errors the trial court might have

committed and the likelihood that any such errors could result in a reversal. As a

practical matter, the most important factor for many clients and their families is the

severity of their sentence. For example, if your client receives a 20-year TJJD sentence,

the decision is relatively easy. On the other hand, if the fact finder finds that State has

only proven trespass to a habitation instead of burglary of a habitation, your client may

be less inclined to appeal.

As the trial attorney, you also have the ethical duty to discuss the desirability of

pursuing an appeal with your client. However, the decision to appeal rests solely with

the client.

Withdrawing as Counsel:

If trial counsel has no desire to represent the respondent on appeal then counsel

should inform the client that he will file a motion to withdraw and request the

appointment of appellate counsel. This should be done as soon as possible after the

court pronounces judgment. Remember the appellate timetable begins to run from the

date the judgment is signed.

Anders Procedure :

Many of the clients we represent in delinquency cases are indigent. The decision

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to appeal is relatively easy when the client incurs no expenses or legal fees. This

situation can create a problem for appointed counsel because the client decides whether

to appeal and the attorney decides what issues to assert. On the other hand, counsel is

ethically prohibited from urging frivolous issues on appeal. Therefore, when counsel

concludes the appeal lacks merit he must follow the procedures set forth in Anders v.

California, 386 U.S. 738 (1967) and Bledsoe v. State, 178 S.W.3d 824 (Tex. Crim. App.

2005)

These procedures require counsel to thoroughly examine the appellate record and

act as an advocate for the client. If counsel determines there are no non-frivolous issues

to assert he must send a copy of the brief and the record to the client. He must also

inform the client that he can has the right to file a brief on the merits and the applicable

timetable in the court of appeals as well as the Supreme Court.

Counsel should be aware that the appellate court conducts its own examination of

the record. If it concludes there is a non-frivolous issue to assert then it generally

instructs the trial court to remove and replace the appellate attorney. For that reason, an

Anders brief should only be filed after carefully perusing the record and researching the

applicable law.

III.

PROCEDURES TO PERFECT THE APPEAL

Motion New Trial:

If the case was tried to a jury, you “probably” should file a motion for new trial if

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you want to complain on appeal that the evidence was factually insufficient. At least

three Texas appellate courts have held that the Brooks standard is the only standard

applicable in reviewing challenges to the sufficiency of the evidence in juvenile cases.

In Brooks v. State, 323 S.W.3d 893 (Tex. Crim. App. 2010) a plurality of the Court of

Criminal Appeals held that the legal sufficiency standard enunciated in Jackson v.

Virginia, 443 U.S. 307 (1979) is the only standard that a reviewing court may apply in

determining whether the evidence is sufficient to support a criminal conviction. If the

Texas Supreme Court adopts the Brooks standard then it will not be necessary to file a

motion for new trial to preserve a challenge to the factual sufficiency of the evidence.

Nevertheless, I suggest we continue raise this issue in motions for new trial until the

Supreme Court decides the matter.

In a bench trial a motion for new trial if not necessary to preserve a challenge to

the factual sufficiency of the evidence.

Regardless of whether the case was tried to the judge or the jury, there are several

good reasons for filing a motion for new trial. First, a timely filed motion for new trial

automatically extends the deadline for filing the Notice of Appeal from 30 to 90 days

after the judgment is signed. TRAP 26.1. Thus, it gives the attorney more time to secure

a pauper's oath if the client is indigent and research any potential points of error.

Filing a motion for new trial also gives the trial judge a chance to consider your

meritorious complaints regarding the trial court proceedings. The judge will appreciate

the opportunity to remedy any error committed in their court and you never know, he or

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she may grant the motion. In short, it is better to remedy any potential errors in the trial

court than incur the time and expense of taking a case through the appellate process.

Filing the Notice of Appeal:

The one essential post-judgment document is the Notice of Appeal. To perfect an

appeal a written notice of appeal is filed with the District Clerk. The Harris County

District Clerk does not accept electronically filed notices.

However, the deadline to file the notice differs for appeals from adjudication

judgments and those from certification orders.

Adjudication Judgments: Here the notice must be filed within 30 days after the

judgment is signed. TRAP 26.1(a) However, if the respondent files any pleading

pleadings set forth in TRAP 26.1(a)(1)-(4), such as a motion for new trial, the time to

file the notice is extended to 90 days after the judgment is signed.

Certification Orders: Here the notice must be filed within 20 days of the final

order being signed. TRAP 26.1

In either case, if the respondent fails to timely file the notice files the notice within

15 days after the deadline has passed, the appellate court may grant an extension of time

to file the notice upon a showing of good cause. TRAP 26.3

Contents:

TRAP 25.1(d) sets out the contents of the notice. It must identify the trial court

and state the following: the cause number; style; the date of the judgment or order

appealed from; that the party desires to appeal; and the appellate court to which you are

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appealing (for Harris and surrounding counties you designate either the 1st or 14th court

of appeals); and, the name of each party filing the notice.

Any defect in the notice may be corrected by filing an amended notice at any time

before appellant's brief is due. TRAP 25(f)

Establishing Indigence:

In the majority of juvenile appeals, the respondent and his family are indigent.

Because juvenile appeals are civil in nature, a party seeking to establish their indigence

must comply with TRAP 20.1 The requirements to establish indigence are: (1) the party

(in the juvenile appellate process this usually means the parent) files an affidavit of

indigence in compliance with this rule; (2) the claim is not contested, or,

if contested, the contest is not sustained by a written order; and (3) the party timely files

a notice of appeal. TRAP 20.1(a)(1)-(3)

The required contents of the affidavit are listed in TRAP 20.1(b)(1)-(12). The

clerk, court reporter or any party may challenge the affidavit. However, the contest must

be filed within 10 days after the affidavit is filed in the trial court. If no contest is timely

filed the allegations in the affidavit are deemed true. TRAP 20.1(e)

While the burden of proof is on the party filing the affidavit, if the party is

detained or incarcerated at the time of the hearing, the affidavit must be considered as

evidence and it is sufficient to meet the indigent party's burden without the party

attending the hearing. TRAP 20.1(g)

Here are some practical suggestions. Bring a blank affidavit of indigence with

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you to court while the case is being tried. That way the parent or guardian can execute it

right after the adverse verdict is rendered. Sometimes, they are un-cooperative or hard

to find after the judgment is signed. You should always file an order in the trial court

reciting that the juvenile appellant can proceed as a pauper. Then bring a certified copy

of the order to the post-civil judgment section of the District Clerk’s Office. This will

avoid receiving computerized letters from the clerks of the district and appellate courts

demanding payment of court fees.

The Appellate Record:

Without a record there is nothing for the appellate court to review. You are

responsible for requesting the preparation of the appellate record that consists of the

court reporter’s record and the clerk's record. The request for the court reporter's record

must be made in writing at or before the time for perfecting the appeal and filed with the

trial court clerk. It must also designate the exhibits and the portions of the proceedings

to be included. TRAP 34.6 Besides filing the request with the clerk, a courtesy copy

should also be given to the court reporter.

If your client is proceeding in forma pauperis then the county will pay for the

appellate record. If not, you must make the financial arrangements to have the record

prepared. The court reporter will generally provide a copy of the record to the appointed

attorney.

TRAP 34.5 sets forth the required contents of the clerk's record. Certain items

such as the pleadings on which the trial was had and the docket sheet must be include.

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You may also designate additional items you want to include in the record any time

before the clerk's record is prepared.

The appellate record must be filed in the appellate court within 60 days after the

judgment is signed but if TRAP 26.1(a) applies then the time is extended to 120 days.

Retrieving the Record:

The court of appeals will notify you when the reporter and clerk's records are

filed. You should sign up to receive automated notices regarding your case at the court

of appeals web site. In that way, you will be informed by e-mail whenever any event

occurs in the case such as when a pleading is filed or an order entered.

Once you are notified that the record has been filed, you can retrieve it at the court

of appeals clerk's office. The clerk and reporter's records are now filed electronically.

So you now just pick up the disk, download the contents and return it to the clerk's

office. Both courts of appeals are located in the old civil courthouse at 301 Fannin.

IV.

THE BRIEF

When to File & Contents:

An appeal from an adjudication judgment the appellant's brief is due 30 days after

the record is filed and the appellee's brief is due 30 days later. TRAP 38.6 In contrast, an

appeal from a certification order is due 20 days after the record is filed and the appellee's

brief is due 30 days later.

If you are unable to finish your brief within that time period you should request an

extension of time. Extensions are granted for good cause and the courts routinely grant

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the first request. Appellate courts are more likely to grant extensions in non accelerated

cases.

All documents, including briefs, must be filed electronically in all appellate

courts. I recommend reviewing and downloading “A Guide to Creating Electronic

Appellate Briefs” by Blake A. Hawthorne. The Guide is found on the websites of all

Texas appellate courts.

The requisites of briefs as well as the applicable timetables are found in TRAP 38.

It is a good idea to review this rule before you start to write the brief.

In your brief, you must inform the court if you are requesting oral argument. If

you have raised some novel issues then by all means request it. Although courts do not

generally grant oral arguments, when they do it means some issue has piqued their

attention. In that case, oral arguments provide the last opportunity to persuade the court

to rule in your favor.

In writing the brief try to frame the appellate issues in the most concise and

interesting way possible. Verbosity and redundancy are two qualities you want to avoid

in brief writing. On the other hand, specificity and brevity are two qualities that will

only increase your client's chances of having the appellate court give due consideration

to your points of error.

Formatting and Word Counts:

Texas appellate courts now have unified rules regarding formatting and word

counts. TRAP 9.4 specifies the following:

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(e) Typeface: A document produced on a computer must be printed in a

conventional typeface no smaller than 14-point except for footnotes, which must be no

smaller than 12-point.

(i) Length: (1) In calculating the length count every word except the following:

caption, identity of parties and counsel, statement regarding oral argument, table of

contents, index of authorities, statement of the case, statement of issues presented,

statement of jurisdiction, statement of procedural history, signature, proof of service,

certification, certificate of compliance, and appendix.

(2)(B) A brief and response in an appellate court in an original

proceeding: 15,000 words. In civil cases in court of appeals, the aggregate of all briefs

filed by a party must not exceed 27,000 words.

(2)(C) A reply brief 7,500 words.

(2)(D) 4,500 words in the Supreme Court for a petition and response in

original proceedings as well as for a petition for review and response. Same limit for a

motion for rehearing and response in an appellate court.

(2)(E) 2,400 words for a reply to a response to a petition for review in the

Supreme Court and a reply to a response to a petition for review in an original

proceeding in the Supreme Court.

(3) Certificate of Compliance: A computer generated document that is

subject to the word limit under this rule must include a certificate by counsel or an

unrepresented party stating the number of words in the document. The person certifying

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may rely on the word count of the computer program used to prepare the document.

After Issuance of the COA Opinion:

In civil cases the court of appeals has the authority to reverse the trial court’s

judgment if it finds not only that an error of law was committed but also that the error

either caused the rendition of an improper judgment or probably prevented the appellant

from properly presenting the case to the court of appeals. TRAP 44.1(a)(1) & (2) So

establishing that the trial court committed an error is not enough.

There are different types of judgments the court can render. It can: (1) affirm the

trial court's judgment in whole or in part; (2) modify the judgment and affirm it as

modified; (3) reverse the judgment in whole or in part and render the judgment that

should have been rendered; (4) reverse the judgment and remand the case for further

proceedings; (5) vacate the judgment and dismiss the case, or; (f) dismiss the appeal.

TRAP 43.2

Once the court of appeals issues its judgment a party has 15 days to file either a

motion for rehearing and/or reconsideration en banc. Whether to file this motion

depends on the result and the issues presented in the case. For example, if there is a

dissent and the judgment is adverse to your client it may be advisable to file such a

motion.

If the court of appeals determines that its analysis merely applies well-established

law to the facts of a particular case and therefore has no precedential value, the opinion

is designated as a “memorandum opinion.” It is not published in the Southwest Reporter.

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In recent years, slightly less than half of opinions received this designation.

Supreme Court:

Either party has the right to file a petition for review with the Texas Supreme

Court. In recent years the Court grants about 10% of the petitions it receives. Clearly,

to have any hope of success the petition must present a meritorious issue.

Unless the court orders an earlier filing deadline, the petition must be filed within

45 days of the date the court of appeals rendered its judgment or the date the court of

appeals last ruling on a all timely filed motions for rehearing or en banc reconsideration.

The requirements for filing a petition for review in the Supreme Court are found

in TRAP 53. It must be filed with the Supreme Court clerk within 45 days after either

the date the court of appeals rendered its judgment or the date the court of appeals' last

ruling on all timely filed motions for rehearing. TRAP 53.7

V.

CONCLUSION

I hope this paper helps you to avoid the procedural pitfalls in perfecting a direct

appeal in a juvenile delinquency case. Those of us who practice juvenile law should

make sure that none of our clients’ loss their right of appeal. Therefore, it is our duty to

adequately and fully explain to them what their right of appeal is and then to take the

steps necessary to preserve that right.

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