### TEXA S C OU R T OF A PPEAL S, THIR D DIST R ICT , AT AU STIN

NO. 03- 07 -00 674 -CR

Bar r y Le e Br igg s , A ppe lla nt

v. The State of Texas, App ellee

F ROM THE COUNTY COURT AT LAW NO. 3 OF TRAVIS COUNTY NO. C1CCRO4 6660 78 , HO NORAB LE DAVID CRAIN , JUDGE PRESIDI NG

M E M O R

A N D U M O P I N I O N Appellant filed his notice of appea l on October

1, 2007. His brief w as due January 7, 2 0 0 8 , b u tw a s n e v e r

f i l e d
. T h i s C o u rts e n ta

l a t e - b r i e f

n o t i c e t o a

p p e l l an t ’ s r e t a i n e d

a t t o r n e y, J . W. Howeth, but Mr. Howeth ne ver r espon d ed. W e then a bated the a

ppeal a nd asked that the trial court c onduct a he aringto determine w hether appellant wishe d to prosecute his appea l and whether Mr. Howeth had aba ndoned the a

ppeal. See Tex. R. App. P. 38.8(b)(2), ( 3). The tr ial court held the re quested he aring , and a reporte r’s re cord f rom that hea

ring was filed on O ctober

10, 2008. The trial c ourt stated at the he aringthat Mr. How et h wa s gi v en noti ce of the hea ring both by mail and by telephone messag es but that neither appellant nor Mr. H oweth had a ppear ed bef

ore the tr ia l c ourt . T he tr ia l c ourt state d th a t “ nei ther

the de fe nd ant o r t

he a tto rn e y

wi shto p ro se c ute thi s appea l any

longe r” a

nd “sug g est[ed] that the appe al be a bated, or abando n ed , or dismissed . . .Mr. Howe th has rec eived c opies of our various communications and re ceive d notice of the 1 trial court’ s hear ing but f

ailed to a ppear at the hea

ring and has not re sponded to any of this Court’s inquiries. The trial court cler k informed us that Mr. Howeth told the cler k that he had not he ard f

rom his c lie nt a

nd wa s n ot g oin g to take any fu rt he r a c tio ns in t

his c a se . A lth ou g h w e re c og nize that th is is hearsa y and is not information rec eived by us from Mr. How eth direc tly , we have hea rd nothing from Mr. How eth himself re g ardingthis appeal since its inception. As fou ndby

th e t r i a l cou rt , ap pel lan t h as ap pare nt ly deci dedto aban do n h is app eal . By Mr. Howe th’s failure to file a motion to dismiss stating his client’s intentions, see Te x. R. A pp . P. 42.2(a) , or indeed to communicate with this Court in any way , Mr. Howe th has nee dlessly cause d the waste of valua

ble judicial re source s by

requiri n g u s t o revie w the re cord f or er ror without the benef it of briefs, see id. R. 38.8(b), putting the trial court throug h the trouble of pr epar ing the cler k’s rec ord and holdinga hea

ring pursuant to rule 38.8( b), and requiring the court reporte r to prepa re a nd file re cords f

rom the trial and f

rom the rule 38.8(b) hea

ring
. See Tex. R. Dis ciplinary P. 3.01-.04, reprinted in Tex. Gov’t Code Ann., tit. 2, sub t i t
. G ap p . A- 1 (West 2005) (lawyer sha ll not bring claims unless supported by non-fr ivolous basis, shall not take position that unreasona bly incre ases burd e ns or

de lay s r e so lut ion

of c a se , ow e s du ty of c and or to c ourt s, and sh a ll n ot h a bit ua lly vio late ru le s of pr oc e dure ). I f a

pp e lla nt h a s n ot d e c ide d to a

ba nd on the a pp e a l, M r. Ho we th h a s v iol a te d h is d u ti e s to h is c li e nt. S

ee Tex. R. Dis ciplinary

P. 1.01(b) (attorney

shall not “neg lect a le g al matter entrusted” to attorney

or “f reque ntly fail to ca rry out completely

the obliga

tions” owed to client). 2 be c a us e it d oe s n ot a

pp e ar t hat th e re ’s any

int e nt, wh a tso ever , to pro secut e an a pp e a l of thi s c a se at this tim e.” Appellant and his attorney have not responded to our notice s or filed a ny document disag ree ing w ith th e t rial cour t’s finding that the appe al has be en aba ndoned. We theref

ore ma y 1 consider the appea l without a brief pur suant to rule 38.8(b) (4). See Tex. R. App. P. 3 8
. 8 (b )(4) (appe llant’s failure to file brief does not allow appellate court to dismiss appea l; when no appellant’s br ie f i s f ile d a nd tr ia l c o ur t de te rm ine s th a t a

pp e lla nt n o lo ng e r w ish e s to pr os e c ute a pp e a l, “ a pp e llate court may consider the appea l without briefs, as justice may require ”).3 Appellant wa s cha rge d

b y co mp l ai n t

wi t h m i s d em ea n o r d ri v i n g wh i l e i ntox icated a nd driving with a

n open container
. Appellant filed a pretria l motion to suppr ess evidenc e, ar g uing that the arr e sti ngof

fi c e r l a c ke d p ro ba

ble c a us e to d e ta in a

pp e lla nt o r s ub je c t hi m to so br ie ty

te sts
. At a pre trial hea

ring held in J uly

2004, Trooper David Dixon testi fied that be tween 8:00 and 9:00 p.m. on April 3, 2004, he saw a pickup truck stop on the side of the road a nd turn off its headlig hts. Dix on was c oncer ned about the dr iver’s w elfa re be cause the roa d was dang erous a nd, if the c ar ha d bro ke n d ow n, it w a s a thr e e -m ile wa lk t o a

g a s st a tio n. Di xon s a id, “ Idid n’ t w ant h im to g et in a n acc ident, or something, if someone hit him coming a round the c orner .” Dixon drove up t o t h e t ru ck and turned on his “alley lights to see if

he wa s okay ,” and he saw a ppellant “slumped over in the ve hicle.” Dix on asked if appellant was all rig ht, and appellant answe red that he stopped to go to the bathroom. Di x o n t es t i fi ed that appe llant’s ey es we re bloodshot and g lassy and aske d wh e the r ap p e l l an th a d

b e e ndr i n k i n g . A p p e l l a

n tan s w e r e d

t h a th e h a d

dr u n k t w o o r t h r e e b e e r s. App el l an t provided his driver ’s license when a sked, and D ix on then aske d him to st ep out of the truck. Appe llant was “unsur e of himself a s he wa s exi ting. He had to use the door and the side of [hi s truck] for bala

nce.” Appellant told Dix on that he had taken pain killers e arlier in the day . Dix on perf ormed the H GN test and saw seve ral of the test’s signs of intox ication. He the n asked a ppellant to pe rf or m a fie ld sob ri e ty

te st, and wh e n a pp e lla nt w a s una

ble to c omp le te it, Di xon a rr e ste d h im. After placing appellant unde r ar rest, Dixon searche d the truck a nd found two open c ans and a n open bottle of bee r in the passe ng er c ompartment, an e mpty twelve- pack and a full twelve-pa ck else wher e in the truck, a

nd an empty

can of beer in the bed of the truck.4 The trial c ourt conc luded that the initial detention was re asonable beca use appe llant was pulled off

on the side of the road with his headlig hts off and D ix on had a r easona ble conc ern
a bo ut a pp e lla nt’ s sa fe ty

and the ri sk of an a c c ide nt. Th e c ourt

he ld that Di xon d e ve lop e d r e a so na ble
su sp ic ion thr ou g h h is c on ta c t w itha pp e lla nt a nd ov e rr ule d a pp e lla nt’ s mo tio n to su

pp re ss. Ap pe lla nt w a ive d h is r ig ht t o a

jur y tr ial and

ple d n ot guil ty . A t a

be nc h tr ia l in June 20 07 , D ixon p ro vid e d e sse nti a lly the same te sti mony , a lso te sti fy ingthat app e lla

nt r e fu se d to g ive a br eath sample when a sked. Dixon also ex plained that the two cans a nd the bottle found in the passeng er c ompartment we re empty and cold to the touch. O n cross-e x amination, Dix on explained that this area

of roa d is known fo r cr i m i n al activity , such as dr ug activity , and that he a

pproac hed
a pp e lla nt’ s tr uc k be c a us e “ it’ s no t a ve ry fr ie nd ly sp ot to b e str and e d” and Di xon w a s “ c he c kin g to see if [appe llant] was o k ay . ” At t he close of evide nce, a ppellant ag ain ar g ued that Dixon lacked probable cause to approa ch appe llant’s car and that the stop was illeg al. The tria l court disag ree d
and fo un d a pp e lla nt guil ty . T he tr ia l c ourt con vict e d a pp e lla nt o f D WIand

se nte nc e d h im t o 120 day s in jail, probated for two y ear s, and a $ 2 , 0 0 0 fi n e, $1,500 of which w as also probated. Appellant filed a

motion for new tria l, arguing that Dix o n l acke d probable cause to approa ch appellant’ s parked ca r i n t h e fi rst place and that the c ircumstance s did not show a need f or
co m m u n i t y

ca re t ak i n g. Havingrevie wed the r ecor d and findingno reve rsible error, we aff irm the trial cour

t’s judgme nt of conviction.5 __________________________ _ _ _ _ _ _ _ __________ David Pury ear , J ustice Be fore Chief J ustice L aw, Justi ces Pury ear and Pember

ton Affir med Filed: De cembe r 3, 2008 Do No t Pu

bli sh