Opinion
No. 05-19-00666-CR
07-20-2020
EX PARTE MICHAEL DWAYNE WILLIAMS
On Appeal from the County Criminal Court No. 10 Dallas County, Texas
Trial Court Cause No. MC18-A5804
ORDER
Before the Court is appellant's June 26, 2020 motion requesting compliance with rule of appellate procedure 38.8(b)(2). Appellant contends rule 38.8(b)(2) requires the Court to abate his case to allow the trial court to conduct a hearing and make findings regarding why his brief has not been filed. We DENY the motion, but grant other relief as follows.
Appellant is appealing the trial court's order denying relief on his pro se article 11.072 writ application. Appellant's brief was due initially on July 18, 2019. On July 31, 2019, appellant filed a motion requesting more time to prepare his brief and a free copy of the record. The Court extended the time to file appellant's brief to September 16, 2019, informed him that he was not entitled to a free copy of the record, and advised him of the cost of the record. On September 24, 2019, the Clerk notified appellant that the time for filing his brief had expired. The Clerk directed appellant to file his brief and a motion for extension within ten days. After appellant failed to file his brief or respond to the Clerk's notice, the Court entered an October 23, 2019 order to submit the case without his brief.
On November 14, 2019, appellant filed a letter complaining he had not been given a hearing under rule 38.8. On November 26, 2019, appellant filed a motion for en banc reconsideration of the Court's October 23, 2019 order. The Court then vacated the October 23, 2019 order and ordered appellant to file his brief by March 9, 2020. To date, appellant has not filed his brief.
Rule of appellate procedure 31 governs this appeal and the Court applies "the same briefing rules, deadlines, and schedule that apply to direct appeals from criminal cases." See TEX. R. APP. P. 31.1(a). However, rule 31.1(a) also allows the appellate court to "impose a more expedited timeline or submit the case without briefing, if necessary to do substantial justice to the parties." Id.
Rule 38.8 provides that if an appellant fails to file a brief, the appellate court clerk must notify counsel that the brief is overdue and, if counsel does not provide within ten days a satisfactory explanation, the appellate court must order the trial court to conduct a hearing to determine "whether the appellant desires to prosecute his appeal, whether the appellant is indigent, or, if not indigent, whether retained counsel has abandoned the appeal, and to make appropriate findings and recommendations." See TEX. R. APP. P. 38.8(b)(2). Relying on this rule, appellant contends the Court must abate this appeal and order the trial court to conduct proceedings to determine why he has not filed his brief.
The purpose of rule 38.8(b) is to ensure that appointed counsel is providing a defendant with timely and effective representation. See Wade v. State, 31 S.W.3d 723, 725 (Tex. App.—Houston [1st Dist.] 2000, pet. ref'd). Appellant is not represented by appointed counsel in this habeas appeal. Rule 33.8(b) does not apply to cases where individuals are voluntarily representing themselves pro se on direct appeal. See Lott v. State, 874 S.W.2d 687, 688 n.2 (Tex. Crim. App. 1984) (discussing predecessor rule); Burton v. State, 267 S.W.3d 101, 103 (Tex. App.—Corpus Christi-Edinburg 2008, no pet.). We see no reason why rule 38.8 should be interpreted any differently in a pro se habeas appeal.
In this case, the Court already knows appellant desires to prosecute his appeal from the numerous letters and motions he has filed. Furthermore, the Court knows appellant has not filed his brief because he has not been given a free copy of the record and is concerned the Court will not accept his brief without proper citation to the record.
Rather than abate this proceeding and endure the additional delay that would entail with no apparent benefit, the Court instead ORDERS the suspension of the requirements of rule 38.1 requiring appellant to provide record references in his brief. See TEX. R. APP. P. 2, 38.1. Thus, appellant may file his brief without providing references to the record.
We ORDER appellant to file his brief on or before September 18, 2020. We ORDER the State to file its brief within THIRTY DAYS of the date appellant files his brief. The Court will set the case for submission after the parties file their briefs.
/s/ ROBERT D. BURNS, III
CHIEF JUSTICE