NUMBER 13-15-00551-CR

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI - EDINBURG

 

GLEN LEACH, Appellant,

v.

THE STATE OF TEXAS, Appellee.

On appeal from the 319th District Court

of Nueces County, Texas.

ORDER

Before Chief Justice Valdez and Justices Rodriguez and Benavides

Order Per Curiam

Glen Leach appeals his conviction for possession of a controlled substance. After 

pleading guilty without a plea bargain to this third-degree felony offense, the trial court 

sentenced him to three years of confinement in the Institutional Division of the Texas 

Department of Criminal Justice. 
2

Appellant's retained counsel has filed a "frivolous appeal" brief. Anders v. 

California, 386 U.S. 738, 744 (1967). By an order issued on July 19, 2016, we struck 

this brief and ordered re-briefing. We now withdraw our July 19, 2016 order striking the 

brief as improvidently issued.

An attorney, whether appointed or retained, is under an ethical obligation to refuse 

to pursue a frivolous appeal. See McCoy v. Ct. of Apps. of Wis., 486 U.S. 429, 435

(1988); Rivera v. State, 130 S.W.3d 454, 458 (Tex. App.—Corpus Christi 2004, no pet.); 

Pena v. State, 932 S.W.2d 31, 32 (Tex. App.—El Paso 1995, no pet.). However, “[t]he 

procedural safeguards of Anders and its progeny do not apply to retained attorneys and 

we do not have the same supervisory role in guaranteeing the attorney's representation.” 

Nguyen v. State, 11 S.W.3d 376, 379 (Tex. App.–Houston [14th Dist.] 2000, no pet.). 

“This is so because by securing retained counsel, the appellant has received all that 

Anders was designed to ensure.” Lopez v. State, 283 S.W.3d 479, 480 (Tex. App.—

Texarkana 2009, no pet.); Torres v. State, 271 S.W.3d 872, 873 (Tex. App.—Amarillo 

2008, no pet.). Nonetheless, like their appointed counterparts, retained counsel also 

have an ethical obligation to refuse to pursue a frivolous appeal. Torres, 271 S.W.3d at 

873; Rivera v. State, 130 S.W.3d 454, 458 (Tex. App.—Corpus Christi 2004, no pet.).

A retained attorney, on determining that an appeal is frivolous, must inform this 

Court that the appeal has no merit and then seek leave to withdraw by filing a motion to 

withdraw complying with Rule 6.5 of the Texas Rules of Appellate Procedure. See 

Torres, 271 S.W.3d at 873; Rivera, 130 S.W.3d at 458; Pena, 932 S.W.3d at 32; see also

TEX. R. APP. P. 6.5. 
3

Based on the foregoing, we order appellant’s retained counsel to either file a brief 

on the merits or a motion complying with Texas Rule of Appellate Procedure 6.5 within 

fifteen days. If retained counsel files a brief on the merits, the State’s brief will be due 

twenty days thereafter. If retained counsel files a motion to withdraw or otherwise fails 

to act within this deadline, appellant has the right to either object to the motion to withdraw, 

retain other counsel, request the appointment of counsel, if indigent, or request the record 

and an extension of time to file a pro se brief. See Knotts v. State, 31 S.W.3d 821, 822 

(Tex. App.—Houston [1st Dist.] 2000, order). If appellant fails to act within thirty days 

from the date of this order, the appeal will be set for submission and considered without 

briefs on the merits alone.

It is so ORDERED.

PER CURIAM

Do not publish.

TEX. R. APP. P. 47.2(b).

Delivered and filed the

6th day of October, 2016.