Opinion filed April 4, 2019




                                      In The

        Eleventh Court of Appeals
                                   ___________

                              No. 11-18-00167-CR
                                   ___________

                 JOHN RICHARD HAMPTON, Appellant
                                         V.
                      THE STATE OF TEXAS, Appellee


                      On Appeal from the 29th District Court
                           Palo Pinto County, Texas
                          Trial Court Cause No. 16404


                      MEMORANDUM OPINION
       Based upon an open plea of guilty, the trial court convicted Appellant, John
Richard Hampton, of the state jail felony offense of possession of
methamphetamine. Appellant pleaded true to the enhancement allegations. See
TEX. PENAL CODE ANN. § 12.425(b) (West Supp. 2018) (providing that two felony
enhancements, as in this case, raise the punishment for the state jail felony to that
for a second-degree felony). The trial court accepted Appellant’s pleas of true, held
a punishment hearing, found the enhancement allegations to be true, and assessed
Appellant’s punishment at confinement for twenty years and a fine of $4,000. We
affirm.
       Appellant’s retained attorney has filed a motion to withdraw wherein she
states that she “is unable to determine grounds for an appeal.” Counsel has also filed
what appears to be an Anders brief. See Anders v. California, 386 U.S. 738 (1967);
Kelly v. State, 436 S.W.3d 313 (Tex. Crim. App. 2014); In re Schulman, 252 S.W.3d
403 (Tex. Crim. App. 2008); Stafford v. State, 813 S.W.2d 503 (Tex. Crim. App.
1991). However, the provisions of Anders v. California do not apply to retained
counsel. Vera v. State, No. 11-10-00063-CR, 2011 WL 2730965, at *1 (Tex. App.—
Eastland July 14, 2011, no pet.) (mem. op., not designated for publication); 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.). By securing retained
counsel, Appellant has received all that Anders was designed to assure. Rivera, 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. When counsel encounters such an appeal, she 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. In this situation, we need only address whether
counsel complied with that rule. Id.
       In compliance with Rule 6.5, counsel’s motion to withdraw contains
Appellant’s name and last known address, a statement that a copy of the motion was
delivered to Appellant via certified and first class mail, and a statement that
Appellant was notified in writing of the right to object to the motion. Additionally,
the motion to withdraw contains a notification to Appellant that he has the right to
file a pro se brief in this appeal and the right to file a petition for discretionary review.
Counsel provided Appellant with a copy of the “Anders” brief, a copy of the motion
to withdraw, an explanatory letter, and a copy of the appellate record. Upon receipt
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of counsel’s motion, the clerk of this court notified Appellant by letter of his
attorney’s representation about the frivolousness of the appeal and the pending
motion to withdraw. This letter also advised Appellant that any response to the
motion was due to be filed in this court on or before January 7, 2019. Appellant has
not filed a response.
        The situation before us is unlike one where no brief has been filed. As we
stated in Vera, we are not bound by the prohibitions of Rule 38.8(b) of the Texas
Rules of Appellate Procedure. Vera, 2011 WL 2730965, at *1 (citing Rivera, 130
S.W.3d at 459) (stating that Rule 38.8(b), which generally prohibits an appellate
court from dismissing or considering a criminal appeal in the absence of an
appellant’s brief, was not designed to protect a non-indigent appellant from retained
counsel’s determination that the appeal is without merit). Furthermore, there is no
rule that obligates this court to retain on the docket an appeal that Appellant, through
his retained attorney, has represented is frivolous. Id. In the interest of justice, we
have independently reviewed the record, and we agree with counsel that the appeal
is frivolous and without merit.1
        We grant counsel’s motion to withdraw, and we affirm the judgment of the
trial court.


April 4, 2019                                                               PER CURIAM
Do not publish. See TEX. R. APP. P. 47.2(b).
Panel consists of: Bailey, C.J.,
Stretcher, J., and Wright, S.C.J.2

Willson, J., not participating.
        1
         We note that Appellant has a right to file a petition for discretionary review pursuant to Rule 68
of the Texas Rules of Appellate Procedure.
        2
          Jim R. Wright, Senior Chief Justice (Retired), Court of Appeals, 11th District of Texas at Eastland,
sitting by assignment.

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