Paul Ray Shanks v. State ( 2005 )

  NUMBER 13-03-089-CR

                                 COURT OF APPEALS

                     THIRTEENTH DISTRICT OF TEXAS

                         CORPUS CHRISTI B EDINBURG

PAUL RAY SHANKS,                                                                       Appellant,

                                                             v.

THE STATE OF TEXAS,                                                                    Appellee.

                      On appeal from the 36^th District Court

                                    of San Patricio County, Texas.

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

Before Chief Justice Valdez and Justices Hinojosa and Rodriguez                       Opinion by Chief Justice Valdez  

Appellant, Paul Ray Shanks, appeals from his conviction for two felony offenses.  We affirm.

Background

Appellant was charged with evading arrest or detention and unauthorized use of a vehicle. See Tex. Pen. Code Ann. '' 31.07, 38.04 (Vernon 2003).  Following a jury trial, appellant was found guilty of both counts and sentenced to two years= imprisonment and a fine of $8,977.04.   After filing a notice of appeal, appellant=s counsel submitted an Anders brief asserting that there was no basis for appeal.  See  Anders v. California, 386 U.S. 738, 744 (1967). 

This Court determined that counsel had advised appellant of his right to file a pro se brief as required but had failed to notify appellant of his right to review the record to determine what issues to raise in his pro se brief.  See McMahon v. State, 529 S.W.2d 771, 772 (Tex. Crim. App. 1975).  We accordingly abated the appeal to permit counsel to notify appellant of his right to review the record.  Counsel complied with our order and notified appellant of this right by letter; appellant then requested that this Court grant him an extension of time to file his pro se brief.  We granted his request for a sixty-day extension on August 3, 2004. 

Over sixty days have passed and no pro se brief or request for additional time has been filed with this Court.  Because this Court only received counsel's Anders brief and has no brief directly from appellant, we will independently conduct a full examination of the record to determine whether the case is indeed frivolous.  See Penson v. Ohio, 488 U.S. 75, 80 (1988); Garza v. State, 126 S.W.3d 312, 312 (Tex. App.BCorpus Christi 2004, no pet.). 

Motion to Suppress

Counsel for appellant raised in his brief, as is required, issues that may arguably support appellant's appeal.   See Anders, 386 U.S. at 744.  In compliance with the holding in High v. State, 573 S.W.2d 807, 813 (Tex. Crim. App. 1978), counsel has also carefully discussed why, under the controlling authorities, there are no errors in the trial court's judgment. 

Counsel did note that the trial court=s denial of appellant=s motion to suppress evidence derived from his arrest may potentially raise Fourth Amendment concerns, as appellant may have been arrested, searched and seized without a warrant, and his original detention by police officers may have been conducted without probable cause. We will review the  trial court's ruling on a motion to suppress evidence for an abuse of discretion.  See Villarreal v. State, 935 S.W.2d 134, 138 (Tex. Crim. App. 1996). 

An officer may conduct a brief investigative detention, or "Terry stop," when he has a reasonable suspicion to believe that an individual is involved in criminal activity. Balentine v. State, 71 S.W.3d 763, 768 (Tex. Crim. App. 2002).  In this case, however, the police were unable to detain appellant for even a brief time in order to conduct a ATerry stop;@ a review of the trial testimony reveals that the police officer involved observed appellant sitting in a moving van and decided to make a u-turn in order to approach the vehicle, but appellant started the engine and drove away before the officer completed the turn.  This initial encounter cannot be described as a Astop@ or Adetention,@ and therefore reasonable suspicion did not have to be established by the State.

Following this initial encounter, the police officer noted that appellant was driving erratically in violation of several traffic laws and therefore pursued appellant=s vehicle with his emergency overhead lights flashing.  If an officer has a reasonable basis for suspecting a person has committed a traffic offense, the officer may legally initiate a traffic stop.  See Whren v. U.S., 517 U.S. 806, 810 (1996); Garcia v. State, 827 S.W.2d 937, 944 (Tex.  Crim. App. 1992).   The observation of traffic offenses will justify police officers in stopping a vehicle. Tex. Code Crim. Proc. Ann. art. 14.01, ' (b) (Vernon 2005); see Garcia, 827 S.W.2d at 944.   Here, the officer testified as to the manner of appellant=s driving as well as his refusal to pull over and stop when pursued by the police.   He and other officers involved in the pursuit reported numerous traffic offenses by appellant.  Given the evidence proffered at trial in support of the police officers= actions in pursuing appellant=s vehicle, we conclude that the trial court did not abuse its discretion in denying appellant=s motion to suppress.  

Independent Review of Record

After reviewing the remainder of the record as required, we are unable to identify any additional grounds for appeal.   See Penson, 488 U.S. at 80.  We therefore conclude that appellant's appeal in this case is frivolous, and we affirm the judgment of the trial court.

In his Anders brief, counsel requests leave to withdraw from further representation of appellant on this appeal.  We grant counsel's motion to withdraw.  Moore v. State, 466 S.W.2d 289, 291 n.1 (Tex. Crim. App. 1971); see Stafford, 813 S.W.2d at 511 (noting that Anders brief should be filed with request for withdrawal from case).  We order counsel to notify appellant of the disposition of his appeal and the availability of discretionary review. See Ex parte Wilson, 956 S.W.2d 25, 27 (Tex. Crim. App. 1997) (per curiam).

The judgment of the trial court is affirmed.

Rogelio Valdez,

Chief Justice

Do not publish.

TEX. R. APP. P. 47.2(b).

Memorandum Opinion delivered and filed

this 14th day of July, 2005.