Roberto Garcia Vera v. State of Texas ( 2011 )

Opinion filed July 14, 2011
In The
Eleventh Court of Appeals
__________
No. 11-10-00063-CR
__________
ROBERTO GARCIA VERA, Appellant
V.
STATE OF TEXAS, Appellee
On Appeal from the 132nd District Court
Scurry County, Texas
Trial Court Cause No. 9566
MEMORANDUM OPINION
The jury convicted Roberto Garcia Vera of felony driving while intoxicated and assessed
his punishment at confinement in the Institutional Division of the Texas Department of Criminal
Justice for a term of forty years. We dismiss the appeal.
Appellant’s retained attorney has filed a motion to withdraw wherein he certifies that,
after diligently searching the record, there is no reversible error on which to base an appeal.
Counsel has also filed what appears to be an Anders brief explaining why the conviction was
lawful. See Anders v. California, 386 U.S. 738 (1967); In re Schulman, 252 S.W.3d 403 (Tex.
Crim. App. 2008); Stafford v. State, 813 S.W.2d 503 (Tex. Crim. App. 1991); High v. State, 573
S.W.2d 807 (Tex. Crim. App. 1978); Currie v. State, 516 S.W.2d 684 (Tex. Crim. App. 1974);
Gainous v. State, 436 S.W.2d 137 (Tex. Crim. App. 1969); and Eaden v. State, 161 S.W.3d 173
(Tex. App.—Eastland 2005, no pet.).
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.). By securing retained counsel, appellant has received
all that Anders was designed to insure. 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, he or she must
inform the appellate court of it and seek leave to withdraw in compliance with TEX. R.
APP. P. 6.5. Id. In this situation, we only need to address whether counsel complied with that
rule. Id.
Appellant’s retained counsel has advised the court that he reviewed the appellate record
and discovered no arguable ground for reversal. The motion to withdraw that he filed discloses
current deadlines and settings, appellant’s name and last known address, a statement that a copy
of the motion was delivered to appellant, and a statement that appellant was notified in writing of
the right to object to the motion, as required by Rule 6.5. Additionally, the motion to withdraw
informs appellant that he has a right to file a pro se brief in this appeal. Upon receipt of this
motion, the court sent appellant a letter dated April 8, 2011, informing him of his attorney’s
representation about the frivolousness of the appeal and the pending motion to withdraw. This
letter also advised appellant that his response to the motion was due to be filed in this court on or
before May 9, 2011. A response has not been filed.
The situation before us is unlike one where no appellant’s brief has been filed.
Accordingly, we are not bound by the prohibitions of TEX. R. APP. P. 38.8(b). Rivera, 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 that it 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 us to retain on our docket an appeal
that appellant has represented, through his hired attorney, is frivolous simply because appellant
failed to respond to his attorney’s motion to withdraw or the brief that the attorney filed.
Accordingly, we grant the pending motion to withdraw and dismiss the appeal.
2
We note that counsel has the responsibility to advise appellant that he may file a petition
for discretionary review with the clerk of this court seeking review by the Texas Court of
Criminal Appeals. TEX. R. APP. P. 48.4 (“In criminal cases, the attorney representing the
defendant on appeal shall, within five days after the opinion is handed down, send his client a
copy of the opinion and judgment, along with notification of the defendant’s right to file a pro se
petition for discretionary review under Rule 68.”). Likewise, this court advises appellant that he
may file a petition for discretionary review pursuant to TEX. R. APP. P. 68.
The motion to withdraw is granted, and the appeal is dismissed.
PER CURIAM
July 14, 2011
Do not publish. See TEX. R. APP. P. 47.2(b).
Panel1 consists of: Wright, C.J.,
McCall, J., and Hill, J.2
1
Rick Strange, Justice, resigned effective April 17, 2011. The justice position is vacant pending appointment of a
successor by the governor.
2
John G. Hill, Former Justice, Court of Appeals, 2nd District of Texas at Fort Worth, sitting by assignment.
3