TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN

NO. 03-07-00674-CR

Barry Lee Briggs, Appellant

v.

The State of Texas, Appellee

FROM THE COUNTY COURT AT LAW NO. 3 OF TRAVIS COUNTY

NO. C1CCRO4666078, HONORABLE DAVID CRAIN, JUDGE PRESIDING

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

Appellant filed his notice of appeal on October 1, 2007. His brief was due January 7,

2008, but was never filed. This Court sent a late-brief notice to appellant’s retained attorney,

J. W. Howeth, but Mr. Howeth never responded. We then abated the appeal and asked that the

trial court conduct a hearing to determine whether appellant wished to prosecute his appeal and

whether Mr. Howeth had abandoned the appeal. See Tex. R. App. P. 38.8(b)(2), (3). The trial court

held the requested hearing, and a reporter’s record from that hearing was filed on October 10, 2008.

The trial court stated at the hearing that Mr. Howeth was given notice of the hearing both by

mail and by telephone messages but that neither appellant nor Mr. Howeth had appeared before the

trial court. The trial court stated that “neither the defendant or the attorney wish to prosecute this

appeal any longer” and “suggest[ed] that the appeal be abated, or abandoned, or dismissed . . .
 Mr. Howeth has received copies of our various communications and received notice of the 1

trial court’s hearing but failed to appear at the hearing and has not responded to any of this Court’s

inquiries. The trial court clerk informed us that Mr. Howeth told the clerk that he had not heard from

his client and was not going to take any further actions in this case. Although we recognize that this

is hearsay and is not information received by us from Mr. Howeth directly, we have heard nothing

from Mr. Howeth himself regarding this appeal since its inception.

As found by the trial court, appellant has apparently decided to abandon his appeal. By

Mr. Howeth’s failure to file a motion to dismiss stating his client’s intentions, see Tex. R. App. P.

42.2(a), or indeed to communicate with this Court in any way, Mr. Howeth has needlessly caused

the waste of valuable judicial resources by requiring us to review the record for error without the

benefit of briefs, see id. R. 38.8(b), putting the trial court through the trouble of preparing the clerk’s

record and holding a hearing pursuant to rule 38.8(b), and requiring the court reporter to prepare and

file records from the trial and from the rule 38.8(b) hearing. See Tex. R. Disciplinary P. 3.01-.04,

reprinted in Tex. Gov’t Code Ann., tit. 2, subtit. G app. A-1 (West 2005) (lawyer shall not bring

claims unless supported by non-frivolous basis, shall not take position that unreasonably increases

burdens or delays resolution of case, owes duty of candor to courts, and shall not habitually violate

rules of procedure). If appellant has not decided to abandon the appeal, Mr. Howeth has violated his

duties to his client. See Tex. R. Disciplinary P. 1.01(b) (attorney shall not “neglect a legal matter

entrusted” to attorney or “frequently fail to carry out completely the obligations” owed to client).

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because it does not appear that there’s any intent, whatsoever, to prosecute an appeal of this case

at this time.”

Appellant and his attorney have not responded to our notices or filed any document

disagreeing with the trial court’s finding that the appeal has been abandoned. We therefore may

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consider the appeal without a brief pursuant to rule 38.8(b)(4). See Tex. R. App. P. 38.8(b)(4)

(appellant’s failure to file brief does not allow appellate court to dismiss appeal; when no appellant’s

brief is filed and trial court determines that appellant no longer wishes to prosecute appeal, “appellate

court may consider the appeal without briefs, as justice may require”).
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Appellant was charged by complaint with misdemeanor driving while intoxicated and

driving with an open container. Appellant filed a pretrial motion to suppress evidence, arguing that

the arresting officer lacked probable cause to detain appellant or subject him to sobriety tests.

At a pretrial hearing held in July 2004, Trooper David Dixon testified that between

8:00 and 9:00 p.m. on April 3, 2004, he saw a pickup truck stop on the side of the road and turn off

its headlights. Dixon was concerned about the driver’s welfare because the road was dangerous and,

if the car had broken down, it was a three-mile walk to a gas station. Dixon said, “I didn’t want him

to get in an accident, or something, if someone hit him coming around the corner.” Dixon drove up

to the truck and turned on his “alley lights to see if he was okay,” and he saw appellant “slumped

over in the vehicle.” Dixon asked if appellant was all right, and appellant answered that he stopped

to go to the bathroom. Dixon testified that appellant’s eyes were bloodshot and glassy and asked

whether appellant had been drinking. Appellant answered that he had drunk two or three beers.

Appellant provided his driver’s license when asked, and Dixon then asked him to step out of the

truck. Appellant was “unsure of himself as he was exiting. He had to use the door and the side of

[his truck] for balance.” Appellant told Dixon that he had taken pain killers earlier in the day. Dixon

performed the HGN test and saw several of the test’s signs of intoxication. He then asked appellant

to perform a field sobriety test, and when appellant was unable to complete it, Dixon arrested him.

After placing appellant under arrest, Dixon searched the truck and found two open cans and an open

bottle of beer in the passenger compartment, an empty twelve-pack and a full twelve-pack elsewhere

in the truck, and an empty can of beer in the bed of the truck.
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The trial court concluded that the initial detention was reasonable because appellant

was pulled off on the side of the road with his headlights off and Dixon had a reasonable concern

about appellant’s safety and the risk of an accident. The court held that Dixon developed reasonable

suspicion through his contact with appellant and overruled appellant’s motion to suppress.

Appellant waived his right to a jury trial and pled not guilty. At a bench trial in

June 2007, Dixon provided essentially the same testimony, also testifying that appellant refused to

give a breath sample when asked. Dixon also explained that the two cans and the bottle found in the

passenger compartment were empty and cold to the touch. On cross-examination, Dixon explained

that this area of road is known for criminal activity, such as drug activity, and that he approached

appellant’s truck because “it’s not a very friendly spot to be stranded” and Dixon was “checking to

see if [appellant] was okay.” At the close of evidence, appellant again argued that Dixon lacked

probable cause to approach appellant’s car and that the stop was illegal. The trial court disagreed

and found appellant guilty. The trial court convicted appellant of DWI and sentenced him to

120 days in jail, probated for two years, and a $2,000 fine, $1,500 of which was also probated.

Appellant filed a motion for new trial, arguing that Dixon lacked probable cause to approach

appellant’s parked car in the first place and that the circumstances did not show a need for

community caretaking.

Having reviewed the record and finding no reversible error, we affirm the trial court’s

judgment of conviction.
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___________________________________________

David Puryear, Justice

Before Chief Justice Law, Justices Puryear and Pemberton

Affirmed

Filed: December 3, 2008

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