Opinion filed January 26, 2023

In The

Eleventh Court of Appeals ___________

No. 11-21-00260-CR

___________

ALBERTICO CRUZ, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 441st District Court

Midland County, Texas

Trial Court Cause No. CR55110

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

The jury convicted Appellant, Albertico Cruz, of two counts of indecency 

with a child by contact. See TEX. PENAL CODE ANN. § 21.11(a)(1) (West 2019). The 

trial court assessed Appellant’s punishment for each count at confinement for fifteen 

years and a fine of $5,000. We affirm.

Appellant’s retained attorney has filed a motion to withdraw wherein he states 

that “there is no basis to pursue an appeal in this matter.” Counsel has also filed 

what appears to be an Anders brief. See Anders v. California, 386 U.S. 738 (1967); 
2

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, 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. In this situation, we need only address whether 

counsel complied with that rule. Id. 

Here, counsel complied not only with Rule 6.5 but also with the requirements 

of Anders. In compliance with Rule 6.5, counsel’s motion to withdraw, which also 

comprises a letter to Appellant, contains Appellant’s name and last known address, 

a statement that a copy of the motion was delivered to Appellant via certified mail, 

and a statement that Appellant was notified in writing of the right to object to the 

motion. Aditionally, the letter attached to the motion to withdraw contains a 

notification to Appellant that he has the right to file a pro se response 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 of counsel’s motion, the clerk of this court notified Appellant by 

letter of his attorney’s brief and the pending motion to withdraw. This letter also 

advised Appellant that he could file a pro se response in this court. 
3

In his pro se response, Appellant raises one issue for review. Because this is 

not a true “Anders” situation, we address the issue raised by Appellant in his pro se

response. Appellant asserts that his constitutional rights to confrontation and a fair 

trial were violated by the trial court when it admitted, over Appellant’s hearsay and 

Fifth Amendment objections, an audio recording of the interview of Appellant that 

was conducted by an investigator with the Midland County Sheriff’s Office.

Appellant’s (and his trial counsel’s) reliance on the hearsay rule is misplaced. 

A party’s own out-of-court statement, when offered into evidence by an opposing 

party, does not constitute hearsay. TEX. R. EVID. 801(e)(2)(A). Here, the out-ofcourt statements were made by Appellant and were offered into evidence by the 

State. Thus, the statements did not constitute hearsay, and the trial court did not 

abuse its discretion when it overruled Appellant’s hearsay objection to the audio 

recording of Appellant’s interview. 

Appellant also suggests that, because he “never confessed to any wrong doing 

during the interrogation,” the admission of the audio recording violated his 

constitutional rights. Appellant relies on the Fifth Amendment and the 

Confrontation Clause. We disagree with Appellant’s contentions because the record 

shows that he waived his Fifth Amendment rights after being read the appropriate 

warnings and because his Sixth Amendment right to confront the witnesses was not 

implicated by the admission into evidence of his own out-of-court statements. 

Both the investigator’s testimony and the audio recording itself show that

Appellant was informed of his Miranda rights and agreed to speak to the 

investigator. See Miranda v. Arizona, 384 U.S. 436, 478–79 (1966); TEX. CODE 

CRIM. PROC. ANN. art. 38.22, § 3 (West 2018). Thus, the record affirmatively shows 

that Appellant waived his rights under the Fifth Amendment and Article 38.22. See

Miranda, 384 U.S. at 475; Joseph v. State, 309 S.W.3d 20, 23–27 (Tex. Crim. App. 

2010). 
4

Appellant’s reliance on the Confrontation Clause is also misplaced. The 

Confrontation Clause provides that “[i]n all criminal prosecutions, the accused shall 

enjoy the right . . . to be confronted with the witnesses against him.” U.S. CONST. 

amend. VI; see Crawford v. Washington, 541 U.S. 36, 42, 68 (2004). However, the 

Confrontation Clause is not implicated when a defendant’s own statements are used 

against him. See, e.g., Vasquez v. Kirkland, 572 F.3d 1029, 1037 (9th Cir. 2009) 

(noting that the Fifth Amendment right against self-incrimination—not the Sixth 

Amendment right to confront witnesses—is implicated by the use of a defendant’s 

own statement); United States v. Brown, 441 F.3d 1330, 1358–59 (11th Cir. 2006) 

(holding that the admission into evidence of a defendant’s own statement did not 

violate the Confrontation Clause). 

Furthermore, in the Crawford line of cases, the Supreme Court has held that 

the Confrontation Clause pertains to the admission into evidence of statements that 

constitute testimonial hearsay. See, e.g., Davis v. Washington, 547 U.S. 813, 823–

26 (2006). The statements about which Appellant complains here were his own 

statements. As we stated above, by definition, a party’s own statements, 

when offered into evidence by the opposing party, are not hearsay. See TEX. R.

EVID. 801(e)(2)(A). Appellant’s rights under the Confrontation Clause were not 

violated by the admission of the audio recording of his own statements. See 

Contreras v. State, No. 02-11-00252-CR, 2012 WL 3737714, at *3 (Tex. App.—

Fort Worth Aug. 30, 2012, pet. ref’d) (mem. op., not designated for publication)

(holding that the defendant’s rights under the Confrontation Clause were not violated 

when his own statements were admitted into evidence).

We have considered all of the contentions raised by Appellant in this appeal 

and have determined that they have no merit. Accordingly, we overrule the sole

issue presented by Appellant. 
5

We grant counsel’s motion to withdraw,

1 and we affirm the judgment of the 

trial court.

PER CURIAM

January 26, 2023

Do not publish. See TEX. R. APP. P. 47.2(b).

Panel consists of: Bailey, C.J.,

Trotter, J., and Williams, J.

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.