                                   IN THE
                           TENTH COURT OF APPEALS

                                  No. 10-09-00283-CR

CHRISTOPHER ALAN ROBINSON,
                                                            Appellant
v.

THE STATE OF TEXAS,
                                                            Appellee



                            From the 249th District Court
                               Johnson County, Texas
                               Trial Court No. F43658


                              DISSENTING OPINION


       I dissent to the Court’s order that dismisses all pending requests for relief on the

basis that the Court lacks jurisdiction.

       By way of background, a notice of appeal was timely filed on September 2, 2009

by Appellant’s counsel, who had been appointed to represent Appellant in this appeal.

On October 2, 2009, Appellant’s attorney filed a “motion to dismiss and waive appeal

and to withdraw notice of appeal.” Attached to the motion to dismiss was Appellant’s

September 16, 2009 handwritten letter to the trial judge, appearing to request that no
appeal be taken. The Court therefore dismissed the appeal in a memorandum opinion

dated October 14, 2009.

        Appellant’s appointed counsel thereafter provided the Court with a copy of an

October 26, 2009 letter that he sent to Appellant, which included a copy of our dismissal

opinion and stated that counsel’s representation was concluded and he was not

planning to take any further action on Appellant’s behalf.1

        On November 12, 2009, the Court received a pro se letter2 from Appellant stating,

“Even though I have written a letter to the judge about the appeal I have in no way filed

any motion in this appeal. I do wish to go forward with this appeal so that I may be

offered or plea bargain for less time.”

        On January 5, 2010, Appellant’s appointed appellate counsel filed (1) a motion to

withdraw the prior “motion to dismiss and to withdraw notice to appeal,” and (2) a

motion for rehearing.           It states:      “Counsel for the Appellant has received a

communication from the Appellant indicating that he has changed his mind and does

not wish to dismiss and waive this appeal and to withdraw his notice of appeal.” It

requests the Court to withdraw the prior dismissal, to grant rehearing, and to reinstate

this appeal.


1
 In a December 2, 2009 letter to the Court requesting copies of documents in this appeal, Appellant states,
regarding the motion filed by his counsel, “It appears as though I have been abandoned.”

2 The November 12 letter does not contain proof of service as required by the Texas Rules of Appellate
Procedure. On December 15, 2009, the Court received another pro se letter from Appellant asking the
Court to disregard the “motion to dismiss and waive appeal and to withdraw notice of appeal” and
stating, “If this motion has been granted then please construe this letter as my motion to re-instate my
appeal.” This letter also lacks proof of service. To expedite this matter, I would implement Appellate
Rule 2 to suspend Rule 9.5’s service and proof-of-service requirements for the November 12 and
December 15 letters and direct the Clerk to send copies to the State. TEX. R. APP. P. 2, 9.5.

Robinson v. State                                                                                   Page 2
          Thereafter, the Court questioned its jurisdiction and requested the parties to brief

the issue of the Court’s ability to withdraw the prior judgment of dismissal and

reinstate the appeal. The State and Appellant’s appointed counsel have filed briefs.

          I believe that the Court should construe Appellant’s pro se November 12, 2009

letter as a motion for rehearing.3 Because the November 12 letter was not filed within

15 days of the Court’s October 14, 2009 opinion and judgment, it is untimely. 4 See TEX.

R. APP. P. 49.1 (motion for rehearing may be filed within 15 days after court of appeals’

judgment is rendered). But a court of appeals may extend the time for filing a motion

for rehearing if a party files a motion for extension of time (complying with Rule

10.5(b)) no later than 15 days after the last date for filing the motion for rehearing. See

TEX. R. APP. P. 49.8. A motion for extension of time can be implied by the filing of a

motion for rehearing within the 15 days for filing a motion for extension of time if the

appellant thereafter files a motion complying with Rule 10.5(b)(1). Cf. In re B.G., 104

S.W.3d 565, 567 (Tex. App.—Waco 2002, order); see also TEX. R. APP. P. 2.



3 At the time of Appellant’s November 12 letter, it appears that Appellant was no longer being
represented by his appointed counsel, given counsel’s October 26 letter to Appellant and Appellant’s pro
se December 2 letter to the Court. To the extent that Appellant was still being represented by counsel
(which I doubt,), I note that a criminal appellant has no right to hybrid representation. Ex parte Taylor, 36
S.W.3d 883, 887 (Tex. Crim. App. 2001); Meyer v. State, 27 S.W.3d 644, 648 (Tex. App.—Waco 2000, pet.
ref’d). For example, when an appellant has counsel and counsel has filed a brief, the appellant has no
right to file a pro se brief. But this prohibition on hybrid representation is not absolute. See, e. g., Warren v.
State, 98 S.W.3d 739, 741 (Tex. App.—Waco 2003, pet. ref’d). We can consider pro se issues in the interest
of justice even though an appellant has no right to hybrid representation. See Williams v. State, 946 S.W.2d
886, 892 (Tex. App.—Waco 1997, no pet.); see also Guyton v. State, 2009 WL 290935, at *2 (Tex. App.—Waco
Feb. 6, 2009, pet. granted) (not designated for publication). Given our precedent and the circumstances in
this case, I would find that the interests of justice require us to address Appellant’s November 12 pro se
letter.

4   Counsel’s January 5, 2010 motion for rehearing is untimely.


Robinson v. State                                                                                         Page 3
        Absent a timely filed motion for extension of time, a court of appeals may not

imply a motion for extension of time with an untimely notice of appeal in a criminal case.

See Fowler v. State, 16 S.W.3d 426, 428 (Tex. App.—Waco 2000, pet. ref’d) (citing Slaton v.

State, 981 S.W.2d 208, 209 (Tex. Crim. App. 1998), and Olivo v. State, 918 S.W.2d 519, 523

(Tex. Crim. App. 1996)). This authority and the rationale in Olivo are not applicable

here because we had jurisdiction of Robinson’s appeal and jurisdiction to utilize Rule 2.5

        Rather than dismiss for lack of jurisdiction all of the pending requests for relief, I

believe that the Court should, with respect to the pro se November 12, 2009 letter being

construed as a motion for rehearing, require Appellant, through his counsel, to file a

motion for extension of time. If a proper motion for extension of time were filed and

granted, the pro se November 12 letter, construed as a motion for rehearing, would be

timely and our plenary jurisdiction will not have expired.

        I respectfully dissent.


                                                            REX D. DAVIS
                                                            Justice

Dissenting Opinion delivered and filed May 5, 2010
Do not publish


5In Olivo, the Court analyzed the issue as follows:
         “Jurisdiction of a court must be legally invoked, and when not legally invoked, the
         power of the court to act is as absent as it if did not exist.” [citation omitted] When a
         notice of appeal, but no motion for extension of time, is filed within the fifteen-day
         period, the court of appeals lacks jurisdiction to dispose of the purported appeal in any
         manner other than by dismissing it for lack of jurisdiction. In that instance, a court of
         appeals lacks jurisdiction over the purported appeal, and therefore, lacks the power to
         invoke Rule 2(b) ... in an effort to obtain jurisdiction of the case. Consequently, a court of
         appeals may not utilize Rule 2(b) ... to create jurisdiction where none exists. [citation
         omitted]
Olivo, 918 S.W.2d at 523.

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