NO. 07-08-0195-CR
IN THE COURT OF APPEALS
FOR THE SEVENTH DISTRICT OF TEXAS
AT AMARILLO
PANEL A
AUGUST 13, 2008
______________________________
TERESA GERHARDT, APPELLANT
V.
THE STATE OF TEXAS, APPELLEE
_________________________________
FROM THE 242ND DISTRICT COURT OF HALE COUNTY;
NO. B 14375-0203; HONORABLE ED SELF, JUDGE
_______________________________
Before CAMPBELL and HANCOCK and PIRTLE, JJ.
ORDER
Appellant appeals her conviction for the offense of theft. She has filed a motion seeking an extension of time in which to file her pro se response to an Anders brief filed by her appointed counsel. We grant appellant's motion.
Appellant's motion asserts that she needs an extension of 30 days because she has been unable to discuss the appeal with her appointed counsel and because she now desires to retain appellate counsel to file her "brief."
Appellant seems to believe that her appointed counsel has already withdrawn from the appeal. However, until appellant's appointed counsel is permitted to withdraw, he remains the attorney of record. Escobar v. State, 134 S.W.3d 338, 339 (Tex.App.–Amarillo 2003, no pet.). We will not rule on the motion to withdraw until we have independently examined the record. Nichols v. State, 954 S.W.2d 83, 86 (Tex.App.–San Antonio 1997, no pet.).
Because an appellant is not entitled to hybrid representation, that is, both to be represented by counsel and appear pro se, the response to an Anders brief filed by appointed counsel is not a brief and need not satisfy the rules applicable to appellate briefs. Henry v. State, 948 S.W.2d 338, 340 (Tex.App.–Dallas 1997, no pet.); Wilson v. State, 955 S.W.2d 693, 696 (Tex.App.–Waco 1997, no pet.). The purpose of a pro se response to an Anders brief is not to present an argument on which the court will decide the case, but is to raise any points the indigent appellant chooses to bring to the attention of the court for it to determine whether the points raised are wholly frivolous or are arguable on their merits. Henry, 948 S.W.2d at 341. If, after reviewing the record, the Anders brief submitted by appellant's counsel, and any response appellant may file, this court determines the appeal has merit, we will remand it to the trial court for appointment of new counsel. See Stafford v. State, 813 S.W.2d 503, 511 (Tex.Crim.App. 1991).
We grant appellant’s motion for extension of time to file pro se response. The due date for any response to her counsel's Anders brief that appellant wishes to file in this appeal is extended to September 5, 2008.
Per Curiam
Publish.
it56">to the trial court's determination of facts, particularly when the trial court's findings turn on an evaluation of the credibility and demeanor of the witnesses. See Guzman v. State, 955 S.W.2d 85, 89 (Tex.Crim.App. 1997). We apply the same deference in reviewing the trial court's rulings on mixed questions of law and fact to the extent that the rulings turn upon a similar credibility evaluation. Id. If a mixed question of law and fact does not turn on a witness's credibility and demeanor, however, we review the trial court's determination de novo. Id. When the trial court has not made a finding on a relevant fact, we imply the finding that supports the trial court's ruling, so long as it finds some support in the record. See State v. Kelly, 204 S.W.3d 808, 818-19 (Tex.Crim.App. 2006); see also Moran v. State, 213 S.W.3d 917, 922 (Tex.Crim.App. 2007). We will uphold the trial court's ruling if it is reasonably supported by the record and is correct under any theory of law applicable to the case. State v. Dixon, 206 S.W.3d 587, 590 (Tex.Crim.App. 2006).
Law and Analysis
In this cause, the trial court entered findings of fact and conclusions of law. Specifically, the trial court found that
1. Officer Roberts stated that he observed [appellee] and another individual walking in the street.
2. As he [Officer Roberts] approached the individuals, Officer Roberts stated [appellee] reached into his pocket and threw something to the ground.
3. Officer Roberts then found object [appellee] had dropped, and he testified it was broken pieces of what appeared to be a crack pipe.
4. The officer’s only reason for approaching these two individuals was that they were jaywalking.
Although the trial court then made a conclusion of law regarding the sufficiency of the evidence to support a conviction for tampering with physical evidence, the trial court did not make a conclusion of law regarding the legality of the initial stop. The only relevant conclusion of law made by the trial court is that “[j]aywalking is a violation of the law (Section 552.006 of the Transportation Code).”
From the trial court’s findings, and giving deference to the trial court, we conclude the trial court found that the police officer made the stop based on violation of section 552.006 of the Texas Transportation Code. Although appellee raised the possibility that appellee did not violate section 552.006 because appellee was crossing the street rather than walking in the street, the trial court made no such finding. In reviewing the record, we defer to the trial court's determination of facts, particularly when the trial court's findings turn on an evaluation of the credibility and demeanor of the witnesses. See Guzman, 955 S.W.2d at 89. With these trial court findings, will now review the trial court’s conclusions of law de novo. Id.
Since Roberts observed a violation of the law, Roberts had sufficient reasonable suspicion to initiate an encounter and, therefore, performed a legal stop. See Ford v. State, 158 S.W.3d 488, 492-94 (Tex.Crim.App. 2005) (objective standard rather than the subjective intent of the officer is used to determine the legality of a stop). As long as an actual violation occurred, law enforcement officials are free to enforce the laws and detain a person for that violation regardless of the officer's subjective reason for the detention. See Garcia v. State, 827 S.W.2d 937, 943-44 (Tex.Crim.App. 1992). Having deferred to the trial court’s finding that the facts supported a finding that appellee had violated the law, we conclude that it was improper for the trial court to suppress evidence discovered during the legal encounter initiated after Roberts observed a violation of a traffic law.
For the foregoing reasons, we reverse and remand to the trial court for further proceedings consistent with this ruling.
Mackey K. Hancock
Justice
Do not publish.