Opinion
No. 14-06-00958-CR
Memorandum Opinion filed April 24, 2008. DO NOT PUBLISH. TEX. R. APP. P. 47.2(b).
On Appeal from the 208th District Court Harris County, Texas, Trial Court Cause No. 919664.
Panel consists of Chief Justice HEDGES and Justices FOWLER and BOYCE.
MEMORANDUM OPINION
After a jury trial, appellant was convicted of theft of between $1500 and $20,000. On June 30, 2006, the court sentenced appellant to confinement for two years in the State Jail Division of the Texas Department of Criminal Justice, probated for five years. Appellant filed a motion for new trial on August 4, 2006. Appellant's notice of appeal was filed October 3, 2006. Because it appeared from the record filed with this court that appellant's motion for new trial was filed more than 30 days after sentencing, the court found that the notice of appeal was untimely and dismissed the appeal for want of jurisdiction. See TEX. R. APP. P. 21.4 ("The defendant may file a motion for new trial before, but no later than 30 days after, the date when the trial court imposes or suspends sentence in open court.") Appellant filed a motion for rehearing, asserting that the trial court did not complete sentencing appellant until it imposed conditions of probation on July 5, 2006, rendering the motion for new trial timely. See Bailey v. State, 160 S.W.3d 11, 13 (Tex.Crim.App. 2004). As support for her motion for rehearing, appellant provided a copy of the record from the hearing held on July 5, 2006, at which the court announced it delayed imposing conditions of probation until after the holiday. Accordingly, we granted rehearing and reinstated the case on February 8, 2007. Despite the passage of over one year since the appeal was reinstated, no brief has been filed. Pursuant to an order from this court, the trial court conducted a hearing to determine why appellant had not filed the reporter's record or his brief. Records from that hearing were filed on August 1, 2007 and August 15, 2007. The reporter's record was filed August 10, 2007. The appeal was reinstated and the due date for appellant's brief was set at September 17, 2007. No brief or motion for extension of time were filed. Counsel and the trial court were notified on October 2, 2007, that no brief had been received. No response from appellant was received. On October 18, 2007, we again abated the appeal and directed the trial court to conduct a hearing to determine why appellant's retained counsel had not filed a brief. Records from that hearing were filed on November 13, 2007, and November 20, 2007. At the November 12 hearing, appellant's counsel informed the judge that he would file an appropriate motion for extension of time with this court. No motion was filed. Accordingly, on November 29, 2007, this court ordered appellant's retained counsel to file a brief in this appeal on or before December 31, 2007. On December 28, 2007, counsel requested a further extension of time to file the brief. The court granted an extension until February 28, 2008, noting that no further extensions would be granted. Again, no brief was filed. Therefore, we ordered appellant's retained counsel to file a brief in this appeal on or before April 7, 2008. The order stated that no further extensions of time would be granted and warned that if counsel did not timely file the brief as ordered, the Court would consider and decide the appeal on the record without the benefit of appellant's brief. See Lott v. State, 874 S.W.2d 687, 688 (Tex.Crim.App. 1994) (affirming conviction on record alone where appellant failed to file a pro se brief after being properly admonished); Coleman v. State, 774 S.W.2d 736, 738-39(Tex.App.-Houston[14th Dist.] 1989, no pet.) (holding that former rule 74( l)(2) (now Rule 38.8(b)) permitted an appeal to be considered without briefs "as justice may require" when a pro se appellant has not complied with the rules of appellate procedure). No response was filed. Rule 38.8 provides that we will not dismiss or consider the appeal without briefs unless it is shown the appellant no longer desires to prosecute his appeal or that he is not indigent and has failed to make necessary arrangements for filing a brief. It is clear that the rule was designed to protect an indigent appellant from the failure of his appointed counsel to provide a brief. The rule further provides that under appropriate circumstances, "the appellate court may consider the appeal without briefs, as justice may require." TEX. R. APP. P. 38.8 (b)(4). Two hearings have already been held as required under Rule 38.8. Because the trial court has already held two hearings to make the findings required under Rule 38.8, and we can find nothing in the rules or case law which requires this court to once again send this matter back to the trial court, we decline to do so. Appellant has not complied with our order of March 6, 2008. While we believe that no accused should be denied his right of appeal, we also believe that "justice requires" that the exercise of this right of appeal must be held within the framework of the rules of appellate procedure. See Coleman, 774 S.W.2d at 738-39. We also believe that requiring any appellant to follow the rules does not infringe upon his rights of appeal. See id. We therefore find that justice requires that this appeal be determined without a brief. This court has reviewed the entire record brought forth in this appeal and we find no reversible error. Accordingly, the judgment of the trial court is affirmed.