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

M E M O R A N D U M O P I N I O N

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 
2

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.
3

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).

Panel1consists 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.