Terri Lynn Hinkle v. State

• Court: Court of Appeals of Texas
• Decided: March 26, 2015
• Docket: 02-14-00274-CR
• Status: Published

Opinion

COURT OF APPEALS SECOND DISTRICT OF TEXAS FORT WORTH

NO. 02-14-00274-CR

TERRI LYNN HINKLE APPELLANT

V.

THE STATE OF TEXAS STATE

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FROM THE COUNTY COURT AT LAW OF HOOD COUNTY TRIAL COURT NO. 46118

MEMORANDUM OPINION 1

Appellant Terri Lynn Hinkle appeals her misdemeanor conviction for theft. 2

We affirm.

The State charged appellant with theft of property valued between $50 and

$500. She waived her right to a jury and pled nolo contendere. After listening to

1 See Tex. R. App. P. 47.4. 2 See Tex. Penal Code Ann. § 31.03(a), (e)(2)(A)(i) (West Supp. 2014). appellant state that her plea was voluntary and considering evidence related to

her punishment, the trial court convicted her; sentenced her to six months’

confinement; suspended imposition of the sentence; and placed her on

community supervision, with several conditions, for twelve months. Appellant

brought this appeal.

Appellant’s retained appellate counsel filed a motion to withdraw as

counsel and a brief in support of that motion. In the brief, citing Anders v.

California, 386 U.S. 738, 87 S. Ct. 1396 (1967), counsel represented that “the

record reflects no potentially plausible basis to support an appeal.”

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

to refuse to pursue a frivolous appeal. See McCoy v. Court of Appeals of

Wisconsin, 486 U.S. 429, 436–37, 108 S. Ct. 1895, 1900–01 (1988). The

procedural safeguards of Anders, however, do not apply to a retained attorney,

and we do not have the same supervisory role over a retained attorney's

representation. Nguyen v. State, 11 S.W.3d 376, 379 (Tex. App.—Houston [14th

Dist.] 2000, no pet.); see Hoeflein v. State, No. 02-11-00057-CR, 2012 WL

407383, at *1 (Tex. App.—Fort Worth Feb. 9, 2012, no pet.) (mem. op., not

designated for publication). “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.).

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

the court that the appeal has no merit and seek leave to withdraw by filing a

2 motion complying with rule of appellate procedure 6.5. See Tex. R. App. P. 6.5;

Hoeflein, 2012 WL 407383, at *1. We must then determine whether the motion

satisfies the requirements of rule 6.5. Hoeflein, 2012 WL 407383, at *1.

Counsel’s motion to withdraw does not meet rule 6.5’s requirements

because it does not contain a list of deadlines and settings in this appeal,

appellant’s telephone number, or a statement that appellant was notified of her

right to object to the motion. See Tex. R. App. P. 6.5(a). Thus, we deny the

motion to withdraw. See id.; Onick v. State, No. 02-09-00130-CR, 2010 WL

4676992, at *1 (Tex. App.—Fort Worth Nov. 18, 2010, no pet.) (mem. op., not

designated for publication).

However, our record contains a copy of a letter that counsel sent to

appellant on August 27, 2014. The letter informed appellant that counsel was

filing a brief stating that her appeal was frivolous, that she had a right to inspect

the record (which counsel mailed to her), and that she could respond to the brief

within thirty days of the letter. 3 On September 3, 2014, we sent appellant a letter

in which we referred to the brief her counsel had filed and instructed her to inform

this court if she desired to respond to the brief. We stated, “If you do not advise

this court of your intentions within fourteen (14) days of the date of this letter,

this court will assume that you . . . have nothing to add to the brief filed by your

3 The letter also notified appellant of her right to file a petition for discretionary review with the court of criminal appeals if this court affirmed her conviction.

3 attorney.” In the several months since then, appellant has not responded to

counsel’s letter or our letter by indicating any desire to contradict the

representations in counsel’s brief concerning the frivolity of her appeal.

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

which appellant has represented, through [her] hired attorney, as frivolous simply

because the appellant failed to respond to [her] attorney’s motion to withdraw or

the brief that the attorney filed.” See Torres v. State, 271 S.W.3d 872, 874 (Tex.

App.—Amarillo 2008, no pet.). Yet, in the interest of justice, we have

independently examined the record, and we discern no arguable issue that could

warrant reversal. See id. Thus, we affirm the trial court’s judgment. See id.; see

also Mariscal v. State, No. 07-12-00529-CR, 2014 WL 1612327, at *2 (Tex.

App.—Amarillo Apr. 17, 2014, no pet.) (mem. op., not designated for publication);

Hoeflein, 2012 WL 407383, at *1; Lopez, 283 S.W.3d at 481.

PER CURIAM

PANEL: LIVINGSTON, C.J.; DAUPHINOT and GABRIEL, JJ.

DO NOT PUBLISH Tex. R. App. P. 47.2(b)

DELIVERED: March 26, 2015