NO. 07-08-0341-CR

IN THE COURT OF APPEALS

FOR THE SEVENTH DISTRICT OF TEXAS

AT AMARILLO

PANEL C

MARCH 5, 2009

______________________________

BOBBY TOBIAS, APPELLANT

v.

THE STATE OF TEXAS, APPELLEE

_________________________________

FROM THE 137^TH DISTRICT COURT OF LUBBOCK COUNTY;

NO. 2007-418,384; HON. CECIL G. PURYEAR, PRESIDING

_______________________________

Before QUINN, C.J., and HANCOCK and PIRTLE, JJ.

On Motion to Dismiss

          Appellant, Bobby Tobias, filed Notice of Appeal to appeal a judgment of conviction of two counts of aggravated sexual assault and resulting sentence entered against him in the 137^th District Court of Lubbock County, Texas. However, appellant has now filed a motion to dismiss his appeal.

          Because the motion meets the requirements of Texas Rule of Appellate Procedure 42.2(a) and this Court has not delivered its decision prior to receiving it, the motion is hereby granted and the appeal is dismissed. Having dismissed the appeal at appellant’s request, no motion for rehearing will be entertained and our mandate will issue.

Mackey K. Hancock

Justice

Do not publish.

licable law and is of the opinion that the record reflects no reversible error upon which an appeal can arguably be predicated. Counsel thus concludes that the appeal is frivolous. Counsel's brief presents a summation of the procedural history of the case and discusses why, under the controlling authorities, there is no reversible error in the trial court proceedings and judgment. See High v. State, 573 S.W.2d 807, 813 (Tex.Crim.App. 1978).

Counsel has attached an exhibit showing that a copy of the Anders brief and motion to withdraw have been forwarded to appellant and that counsel has appropriately advised appellant of his right to review the record and file a pro se response to counsel's motion and brief. The clerk of this court has also advised appellant by letter of his right to file a response to counsel's brief. Appellant has not filed a response.

We have made an independent examination of the record to determine whether there are any non-frivolous grounds upon which an appeal could arguably be founded. See Penson v. Ohio, 488 U.S. 75, 80, 109 S.Ct. 346, 102 L.Ed.2d 300 (1988); Stafford v. State, 813 S.W.2d 503, 511 (Tex.Crim.App. 1991). We have found no such grounds.

Appellant's counsel has moved for leave to withdraw. See Johnson v. State, 885 S.W.2d 641, 645 (Tex.App.-Waco 1994, writ ref'd). We carried the motion for consideration with the merits of the appeal. Having considered the merits and finding no reversible error, appellant's counsel's motion to withdraw is granted ⁽¹⁾ and the trial court's judgment is affirmed.

Mackey K. Hancock

Justice

Do not publish.

1. In granting counsel's motion to withdraw, however, we remind counsel to insure that he has complied with the "educational" duty to inform appellant of his right to file a pro se petition for discretionary review in the Court of Criminal Appeals. Ex parte Owens, 206 S.W.3d 670 (Tex.Crim.App. 2006).