Manuel Gutierrez Torres v. State ( 2008 )

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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