John Richard Hampton v. State ( 2019 )


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  • 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
    2
    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.
    3