Frivolity and Reversibility

While In the Matter of J.W. involved an unusual problem–an Anders brief that, for the second time, appeared inadequate–it provided a reminder about a basic distinction that is sometimes overlooked. “Frivolity,” as to an appeal issue, is not the same as “reversibility”:

The two concepts are certainly not the same. An appeal is “wholly frivolous” or “without merit” when it “lacks any basis in law or fact.”  Arguments are frivolous when they “cannot conceivably persuade the court.”  An appeal is not wholly frivolous when it is based on “arguable” grounds.  Reversal only occurs if arguable error is found to have occurred, and was harmful. . Many nonfrivolous arguments identify errors that do not result in reversal.

No. 05-22-00556-CV (Aug. 28, 2023) (mem. op.) (citations omitted).