Opinion
NO. 14-15-00635-CR
01-26-2016
SADE ELISE GALLOW, Appellant v. THE STATE OF TEXAS, Appellee
On Appeal from the 185th District Court Harris County, Texas
Trial Court Cause No. 1392726
ORDER
This cause is an appeal from appellant's conviction for criminal mischief. After the trial court permitted appellant's counsel to withdraw, appellant indicated to the court that "she was going to hire her own attorney." However, appellant is not currently represented by counsel in this court.
No reporter's record has been filed. On December 3, 2015, we issued an order abating this appeal and directing the trial court to conduct a hearing to determine if appellant desires to continue to prosecute to appeal and, if so, whether she is indigent and therefore entitled to a free record and appointed counsel on appeal. The order stated that appellant was to attend the hearing.
The trial court held a hearing on January 7, 2016. Appellant did not attend the hearing. The trial court stated it sent a certified letter to appellant at her last known address, but the letter was returned to the court marked unclaimed, unable to forward, and return to sender. The court further stated it had made every effort to find appellant, but because she could not be located, the court could not determine whether appellant desires to continue the appeal. The trial court also noted appellant has served her sentence.
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. Tex. R. App. P. 38.8. 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).
A hearing has already been held as required under Rule 38.8. Because the trial court has already held one hearing 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.
Therefore, we ORDER appellant to file a brief in this appeal on or before February 25, 2016. If appellant fails to file her brief as ordered, we will decide this appeal upon the record before the court. 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).
PER CURIAM