Jesus Eduardo Zarate v. the State of Texas

• Court: Court of Appeals of Texas
• Decided: March 28, 2025
• Docket: 07-24-00293-CR
• Status: Published

Opinion

In The Court of Appeals Seventh District of Texas at Amarillo

No. 07-24-00293-CR

JESUS EDUARDO ZARATE, APPELLANT

V.

THE STATE OF TEXAS, APPELLEE

On Appeal from the 110th District Court Floyd County, Texas Trial Court No. 4917, Honorable William P. Smith, Presiding

March 28, 2025 MEMORANDUM OPINION Before QUINN, C.J., and PARKER and YARBROUGH, JJ.

Appellant, Jesus Eduardo Zarate, was found guilty by a jury of the offense of

continuous sexual abuse of a child.1 The same jury also assessed punishment at forty

years’ confinement in the Institutional Division of the Texas Department of Criminal

Justice. Appellant has perfected his appeal and we affirm the trial court’s judgment.

1 See TEX. PENAL CODE ANN. § 21.02(b)(1). Appellant’s retained counsel has filed a motion to withdraw and an Anders2 brief

in support of his assertion that the case presents no non-frivolous grounds for an appeal.

“The 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 (citing Rivera v. State, 130 S.W.3d 454, 458 (Tex. App.—Corpus Christi 2004, no

pet.)). So, when retained 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 such a circumstance, we need only address whether

counsel complied with that rule. Id. at 874; Rivera, 130 S.W.3d at 458.

Here, Appellant’s retained counsel has represented to the Court that he reviewed

the appellate record and discovered no arguable grounds for reversal. Further, our review

of counsel’s motion to withdraw and letters sent by counsel to his client reveals that

counsel has provided the party’s name and last known address and has disclosed

applicable deadlines. See TEX. R. APP. P. 6.5. Counsel has represented that he has

provided Appellant a copy of the motion to withdraw, Anders brief in support thereof, and

2 See Anders v. California, 386 U.S. 738, 87 S. Ct. 1396, 18 L. Ed. 2d 493 (1967).

2 appellate record. He also informed Appellant of his right to object to the motion to

withdraw. See id. The Court has also informed Appellant of his right to respond to

counsel’s pending motion to withdraw, permitting Appellant until January 2, 2025, to

respond. To date, Appellant has not filed a response to counsel’s motion or corresponded

with the Court in any manner.

We know of no rule that obligates us to retain an appeal on our docket which

Appellant has represented, through his hired attorney, is frivolous simply because the

appellant failed to respond to his attorney’s motion to withdraw or the accompanying brief.

Torres, 271 S.W.3d at 874. Nonetheless, in the interest of justice, we undertook an

independent review of the appellate record to determine whether counsel’s representation

regarding the frivolousness of the appeal was accurate. In so doing, we uncovered no

arguable issue warranting reversal of the trial court’s judgment. See id.

Accordingly, we grant counsel’s pending motion to withdraw and affirm the trial

court’s judgment. We direct retained counsel to send Appellant a copy of this opinion and

judgment and notify him of his right to file a pro se petition for discretionary review in

compliance with Rule 48.4 of the Texas Rules of Appellate Procedure. See TEX. R. APP.

P. 48.4.

Judy C. Parker Justice

Do not publish.