IN THE
TENTH COURT OF APPEALS
No. 10-07-00002-CV
Jose Luis Lopez,
Appellant
v.
Amy Elizabeth Lopez,
Appellee
From the 19th District Court
McLennan County, Texas
Trial Court No. 2005-2429-1
O R D E R
The Court’s “Order on Opinion,” issued on November 5, 2008, is withdrawn, and this order is substituted therefor.
The Court’s Opinion and judgment dated August 13, 2008, are withdrawn, and the Opinion and judgment dated November 5, 2008, are substituted therefor. Appellee’s motion for rehearing is denied.
PER CURIAM
Before Chief Justice Gray,
Justice Vance, and
Judge Glen Harrison[1]
(Chief Justice Gray would request a response to the motion for rehearing with a view to granting it. He would not rewrite the opinion to address the motion for rehearing (or the dissenting opinion) without requesting a response. He does not withdraw his dissenting opinion issued on August 13, 2008, so another dissenting opinion will not issue. He notes, however, that the Court is in error in assuming the trial court had to impliedly make any findings. Jose had to prove conversion. He failed to convince the trial court. In his review of the trial court’s judgment he cannot conclude that the trial court erred. It is improper to substitute the Court’s judgment on a review of a cold record for the trial court’s judgment with the trial court’s ability to evaluate the credibility and demeanor of the live witnesses. Because Jose had the burden of proof and, even according to the Court, failed to prove the legal relationship under which Amy was in possession of the receipt or the proceeds thereof, the trial court did not err when it rendered a take nothing judgment against Jose. Additionally there is some question of whether a party that lost on a theory tried by implied consent can appeal that loss. The theory of trial-by-implied-consent is a judgment saving theory.)
“Order on Opinion” dated November 5, 2002 withdrawn; motion for rehearing denied
Order issued and filed November 19, 2008
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[1] Judge of the 32nd District Court of Fisher, Mitchell, and Nolan Counties, sitting by assignment of the Chief Justice of the Texas Supreme Court pursuant to section 74.003(h) of the Government Code. See Tex. Gov’t Code Ann. § 74.003(h) (Vernon 2005).
s', serif"> (B) made it clear to the appellant that the attorney has concluded there are no issues which might arguably support an appeal and the attorney is communicating that to the appellate court;
(C) fully informed the appellant of his or her right to review the record; and
(D) fully informed the appellant of his or her right to file a pro se brief or other response.
4. After the Anders brief has been filed and the attorney has met the obligations described in “A”, “B”, “C”, and “D”, the appellant has thirty days to file a pro se brief or other response, or to file a motion for extension of time in which to do so.
5. If the appellant files a pro se brief or other response, the State then has a right to file a brief or other appropriate response, or a written waiver thereof. On receipt of the State’s response or waiver, we will independently review the record for any issues which might arguably support an appeal.
6. If we find any issues which might arguably support an appeal, we will proceed as required.
7. If we agree there are no issues which might arguably support an appeal, we will affirm the judgment.
8. If the appellant’s attorney wishes to withdraw at any time, the attorney must present a motion to the trial court which appointed the attorney. A copy of any order of withdrawal must be filed by the attorney with us.
On June 28, 2001, this court received a handwritten letter from Powell asking for an extension of time in which to file a pro se brief. He said: “I will be requesting my clerk’s records and court reporter’s records. This will take time.” The request was granted.
On July 27, 2001, this court received a handwritten letter from Powell in which he stated he wanted to represent himself on appeal as “I understand that the court appointed attorney did not wish to do his job. He said the judge was within his rights. If my court appointed attorney had gotten all the transcripts and did his job. I would not need to be righting you at this time.” (Transcripts of eleven hearings which occurred from September 1997 to November 1999 are in the appellate record.) He further says: “It will take a lot longer to get all of my transcripts from 1993 through Oct. 8 1998. I have been to the law library, and have discovered that I cannot do this myself.” But at the end of the letter, he says: “If my appeal cannot be overturned by anything that has been said here, and me returned home to my family to finish my probation that would have been done Dec. 7-2003. There’s no more I can do. I am not a lawyer and I have no money for one. If my letter is improper I am sorry I don’t know what else to do. It is in the Heavenly father’s and your hand’s.” We interpret this letter to mean Powell does not intend to file a pro se brief or any additional response.
We have reviewed the record in this case, and we find that our requirements listed above have been met. The Anders brief shows that Powell’s attorney professionally and systematically examined the entire record for issues which might arguably support an appeal, and concluded there were none. The attorney filed letters with this court that he sent Powell; they show compliance with “3" above. Powell waived in writing his right to file a pro se brief or other response. The State did not file a brief, waiver, or any other written response, nor was that necessary in as much as Powell did not file a pro se brief or other response. Our independent review of the record did not reveal any issues which might arguably support an appeal. Therefore, we affirm the judgment. Appellate counsel must inform Powell of the results of this appeal and of his right to file a petition for discretionary review. Sowels, 45 S.W.3d at 694.
BILL VANCE
Justice
Before Chief Justice Davis,
Justice Vance, and
Justice Gray
Affirmed
Opinion delivered and filed September 12, 2001
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