                                   NO. 07-08-0513-CR

                             IN THE COURT OF APPEALS

                      FOR THE SEVENTH DISTRICT OF TEXAS

                                      AT AMARILLO

                                        PANEL D

                                 DECEMBER 4, 2009
                          ______________________________

                                DANIEL LUIS CANCINO,

                                                               Appellant

                                             v.

                                THE STATE OF TEXAS,

                                                      Appellee
                        _________________________________

              FROM THE 69TH DISTRICT COURT OF DALLAM COUNTY;

                       NO. 4046; HON. RON ENNS, PRESIDING
                        _______________________________

                               Memorandum Opinion
                         _______________________________

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

       Daniel Luis Cancino (appellant) pled guilty to aggravated assault with a deadly

weapon, without the benefit of an agreement on punishment. The trial court eventually

sentenced him to twelve years in prison. Appellant appealed, and his retained attorney

filed a motion to withdraw. In that motion he certified that, after diligently searching the

record, there was no reversible error. We granted counsel’s motion to withdraw and for the

reasons which follow, we affirm the judgment.
       The provisions of Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493

(1967) do not apply to retained counsel. Torres v. State, 271 S.W.3d 872, 873 (Tex.

App.–Amarillo 2008, no pet.); Rivera v. State, 130 S.W.3d 454, 458 (Tex. App.–Corpus

Christi 2004, no pet.); Craddock v. State, 38 S.W.3d 886, 887 (Tex. App.–Waco 2001, no

pet.). This is allegedly 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.

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

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

discloses 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). Upon receiving the 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 12, 2009, and review the

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

address. To date, we have not received a response from him.




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       In situations like that before us, 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 to

the brief that the attorney filed. Nonetheless and in the interest of justice, we undertook

an independent review of the appellate record to determine whether counsel’s

representation regarding the frivolousness of the appeal was accurate. After doing so, we

found no arguable issue warranting reversal, conclude that counsel was accurate, and find

no reason to allow the appeal to proceed.

       Accordingly, we affirm the trial court’s judgment.



                                                 Brian Quinn
                                                 Chief Justice



Do not publish.




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