Memorandum Opinion by Justice Peña Jr., 13-23-00440-CR, January 29, 2026.
On appeal from the 398th District Court of Hidalgo County, Texas.
Synopsis
In this criminal appeal involving a conviction for indecency with a child, the Thirteenth Court of Appeals conducted an independent review of the record following the filing of an Anders brief by court-appointed counsel. The court concluded that the appeal was wholly frivolous, finding no arguable grounds for reversal, and consequently affirmed the trial court’s judgment of conviction and twenty-year sentence. This affirmance provides the requisite finality for practitioners seeking to utilize the conviction as a predicate for mandatory termination of parental rights and restrictive conservatorship orders under the Texas Family Code.
Relevance to Family Law
For the family law practitioner, the finality of a criminal conviction for a sexual offense against a child is a dispositive litigation asset. Under Texas Family Code § 161.001(b)(1)(L), a conviction for indecency with a child serves as a standalone predicate ground for the termination of parental rights, provided termination is in the child’s best interest. Furthermore, under § 153.004, such a conviction creates a near-insurmountable barrier to conservatorship or unsupervised access. Because this opinion affirms the conviction and grants counsel’s motion to withdraw under the Anders protocol, it effectively signals the end of the direct appeal process, allowing the civil practitioner to proceed with collateral estoppel or statutory mandatory presumptions without the risk of a subsequent vacatur of the underlying criminal judgment.
Case Summary
Fact Summary
Appellant Ougo Menchaca Vela was indicted and subsequently convicted by a jury for indecency with a child, a second-degree felony under Texas Penal Code § 21.11(a)(1). The trial court sentenced Vela to twenty years of imprisonment in the Texas Department of Criminal Justice. Following the conviction, Vela’s court-appointed appellate counsel determined that the record presented no non-frivolous issues for appeal. Counsel filed an Anders brief and a motion to withdraw, asserting that after a diligent review of the record, there were no arguable grounds for reversal. Counsel complied with all procedural safeguards, including notifying Vela of his right to review the record and file a pro se response. Despite being provided access to the record, Vela did not file a response.
Issues Decided
The primary issue before the Court of Appeals was whether, after an independent review of the entire record, there were any arguable grounds for appeal that would render the Anders brief improper. Subsumed within this was the determination of whether counsel satisfied the professional and ethical requirements for withdrawal from a frivolous appeal.
Rules Applied
The court applied the standards set forth in Anders v. California, 386 U.S. 738 (1967), which dictates the procedure for appointed counsel who finds an appeal to be frivolous. The court also relied on In re Schulman, 252 S.W.3d 403 (Tex. Crim. App. 2008), which clarifies that an Anders brief must provide a professional evaluation of the record to demonstrate why there are no arguable points of error. Additionally, the court adhered to the “independent review” requirement of Penson v. Ohio, 488 U.S. 75 (1988) and Bledsoe v. State, 178 S.W.3d 824 (Tex. Crim. App. 2005), ensuring that the appellate court itself—not just counsel—confirms the absence of reversible error.
Application
The court’s analysis centered on the procedural sufficiency of counsel’s Anders filing and the substantive lack of error in the trial record. The court noted that counsel’s brief met the requirements of High v. State and Kelly v. State by providing a professional evaluation of the trial proceedings and record references. The court specifically observed that counsel had informed Vela of his rights and provided the necessary forms for pro se access to the record.
In its independent review, the Thirteenth Court of Appeals examined the jury’s verdict, the evidence supporting the second-degree felony conviction, and the legality of the twenty-year sentence. Because the record revealed no procedural irregularities, evidentiary errors, or constitutional violations that could arguably support a reversal, the court determined the appeal was “wholly frivolous.” This narrative of finality was solidified when the court granted the motion to withdraw, finding that counsel had fulfilled her obligations to both her client and the court.
Holding
The Court of Appeals affirmed the judgment of the trial court. The court held that after a thorough and independent review of the record, no arguable grounds for appeal existed, thereby validating the jury’s conviction and the court’s sentence.
In a separate but related holding, the court granted counsel’s motion to withdraw. The court ordered counsel to notify the Appellant of the decision and his right to file a petition for discretionary review, while simultaneously concluding that no substitute counsel would be appointed due to the frivolous nature of the appeal.
Practical Application
For family law litigators, this opinion is the green light to move for summary judgment in a parallel SAPCR or termination proceeding. When a criminal conviction is affirmed via an Anders brief, it suggests that even with the heightened scrutiny of an independent judicial review, the conviction is robust. Litigators should use the mandate following this opinion to satisfy the “conviction” requirement in TFC § 161.001(b)(1)(L) or (Q). Strategically, this eliminates the “stay” often requested by respondents in civil cases pending the outcome of a criminal appeal; once this opinion is delivered and the mandate issues, the “pendency of appeal” argument is extinguished.
Checklists
Applying the Holding to Termination Proceedings
- Verify Finality: Confirm the date of the mandate from the Thirteenth Court of Appeals to ensure the conviction is final for TFC § 161.001(b)(1)(L) purposes.
- Request Judicial Notice: File a motion for the civil trial court to take judicial notice of the criminal judgment and the appellate opinion affirming the conviction.
- Bridge the Best Interest Gap: Use the facts established in the criminal record (often accessible via the Anders brief’s factual summary) to satisfy the Holley factors for the best interest of the child.
Conservatorship and Access Restrictions
- Trigger § 153.004: Present the affirmed conviction to invoke the statutory rebuttable presumption that it is not in the best interest of the child for the convicted parent to be appointed as a managing or possessory conservator.
- Secure Injunctions: Use the 20-year sentence mentioned in the opinion to justify long-term permanent injunctions against any contact between the child and the perpetrator.
- Evaluate “Significant Risk”: Use the indecency conviction to prove that any access would pose a significant risk to the physical health or emotional well-being of the child under § 153.004(d-1).
Citation
Vela v. State, No. 13-23-00440-CR, 2026 WL ______ (Tex. App.—Corpus Christi–Edinburg Jan. 29, 2026, no pet. h.) (mem. op.).
Full Opinion
Family Law Crossover
The “weaponization” of this criminal affirmance in family court cannot be overstated. Texas Family Code § 161.001(b)(1)(L) permits termination if the parent has been convicted or placed on community supervision for being criminally responsible for the sexual assault of a child or indecency with a child. In many cases, a respondent parent will attempt to delay the termination trial indefinitely by claiming their Fifth Amendment rights or arguing that the conviction is “not yet final” while on appeal.
This Anders affirmance effectively kills that defense. By the court finding “no arguable grounds for appeal,” the civil litigator can argue that any further delay for a Petition for Discretionary Review (PDR) is dilatory and lacks merit. Furthermore, under TFC § 153.004(b), the court may not appoint a parent as joint managing conservator if there is a finding of a history of sexual abuse—and a final jury conviction for indecency, affirmed by the Court of Appeals, is the gold standard of evidence for such a finding. Use this opinion to move for an immediate bench warrant (if the parent is incarcerated) for the termination trial or, more effectively, for a summary judgment on the predicate ground.
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