                                   NO. 07-08-0091-CR

                              IN THE COURT OF APPEALS

                       FOR THE SEVENTH DISTRICT OF TEXAS

                                      AT AMARILLO

                                         PANEL B

                                NOVEMBER 26, 2008
                          ______________________________

                            MANUEL GUTIERREZ TORRES,

                                                                Appellant

                                             v.

                                THE STATE OF TEXAS,

                                                      Appellee
                        _________________________________

              FROM THE 121ST DISTRICT COURT OF TERRY COUNTY;

                    NO. 5729; HON. KELLY G. MOORE, PRESIDING
                         _______________________________

                                     Opinion
                         _______________________________

Before QUINN, C.J., and CAMPBELL and HANCOCK, JJ.

       Though charged with aggravated assault, Manuel Gutierrez Torres was convicted

by a jury of the lesser offense of assault causing bodily injury. He received a sentence of

one year in jail and a $4,000 fine. Thereafter, an appeal was perfected, and his retained

attorney filed a motion to withdraw wherein he certified that, after diligently searching the

record, he concluded there is no reversible error. So too did counsel file what appears to

be an Anders brief explaining why the conviction was lawful. See Anders v. California, 386
U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967). For the reasons which follow, we affirm

the judgment.

       The provisions of Anders v. California do not apply to retained counsel. Rivera v.

State, 130 S.W.3d 454, 459 (Tex. App.–Corpus Christi 2004, no pet.); Craddock v. State,

38 S.W.3d 886, 887 (Tex. App.–Waco 2001, no pet.). This is so because by securing

retained counsel, the appellant has received all that Anders was designed to insure.

Rivera v. State, 130 S.W.3d at 458. Nonetheless, like their counterparts who have been

appointed, retained counsel also have an ethical obligation to refuse to pursue a frivolous

appeal. Id. So, when counsel encounters such an appeal, he must inform the appellate

court of it and seek leave to withdraw in compliance with Rule 6.5 of the Texas Rules of

Appellate Procedure. Id. Then, we need only address whether counsel complied with that

rule. Id.

       Here, appellant’s retained counsel has told us that he reviewed the appellate record

and discovered no arguable ground for reversal. Moreover, the motion to withdraw that he

filed discloses current deadlines and settings, the party’s name and last known address

and telephone number, a statement that a copy of the motion was delivered to the party,

and a statement that the party was notified in writing of the right to object to the motion, as

required by Rule 6.5. TEX . R. APP. P. 6.5(a). In response to this motion, we sent appellant

a letter informing him of his attorney’s representation about the frivolousness of the appeal

and the pending motion to withdraw. So too did this court tell appellant, via the same letter,

that he had the opportunity to respond to the brief and motion by November 5, 2008, and

review the record if he should care to respond. The letter was addressed to appellant’s last



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known address. To date, we have heard nothing from him; this may be because the letter

was returned as undeliverable “as addressed” and “unable to forward.”

       The situation before us is unlike one where no appellant’s brief has been filed for

one has been. So, we are not bound by the prohibitions of Rule 38.8(b)(3) of the Texas

Rules of Appellate Procedure. Rivera v. State, 130 S.W.3d at 459 (stating that rule 38.8(b)

generally prohibits an appellate court from dismissing or considering an appeal simply

because no appellant’s brief was filed, but it was not designed to protect a non-indigent

appellant from retained counsel’s determination that the appeal is without merit).

Moreover, we know of no rule that obligates us to retain on our docket an appeal which

appellant has represented, through his hired attorney, as frivolous simply because the

appellant failed to respond to his attorney’s motion to withdraw or the brief that the attorney

filed. Yet, in the interest of justice we undertook an independent review of the appellate

record to determine whether the representation regarding the frivolousness of the appeal

was accurate. In doing so, we too uncovered no arguable issue warranting reversal.

       Accordingly, we affirm the trial court’s judgment and grant the pending motion to

withdraw. So too do we direct David Martinez, appellant’s previously retained counsel, to

mail to appellant, via first class mail, and addressed to his last known address, a copy of

this opinion on or before December 5, 2008.



                                                  Brian Quinn
                                                  Chief Justice

Publish.




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