Opinion
Nos. 14-06-00286-CR, 14-06-00287-CR
Memorandum Opinion filed March 6, 2008. DO NOT PUBLISH. Tex. R. App. P. 47.2(b).
On Appeal from the 209th District Court Harris County, Texas, Trial Court Cause Nos. 785, 382 785, 381.
Panel consists of Chief Justice HEDGES and Justices ANDERSON and BOYCE.
MEMORANDUM OPINION
These are appeals from judgments signed March 28, 2006, revoking appellant's community supervision and sentencing him to confinement for ten months in the State Jail Division of the Texas Department of Criminal Justice. In 1999, appellant was convicted of criminal nonsupport of his two children. In each case, he was originally sentenced to confinement for two years in a state jail facility, probated for five years. See Johnson v. State, Nos. 14-99-01130-CR 14-99-01131-CR, 2001 WL 1218412 (Tex.App.-Houston [14th Dist.] 2001, pet. ref'd) (not designated for publication). Appellant is not indigent and is represented by retained counsel. Appellant's brief was originally due July 26, 2006, over one year ago. On October 13, 2006, appellant filed a motion requesting that we abate these appeals for a period of sixty days so that the trial court could consider his application for writ of habeas corpus collaterally attacking his convictions, which has been pending since 2002. See TEX. CODE CRIM. PROC. ANN. art. 11.072, § 1 (establishing procedure for seeking habeas corpus relief in cases where community supervision is ordered); TEX. CODE CRIM. PROC. ANN. art. 11.07, § 3 (establishing procedure for application for writ of habeas corpus seeking relief "after final conviction in any felony case"). We granted the motion and abated the appeal. More than sixty days passed and the parties did not advise this court of the status of appellant's writ. On January 26, 2007, the court notified the parties that the appeals would be reinstated unless any party filed a response demonstrating grounds for continuing the abatement. No response was filed. Accordingly, we reinstated the appeals and set appellant's brief due March 30, 2007. We granted appellant another extension of time until June 4, 2007. When this extension was granted, the court noted that no further extensions would be granted. On June 27, 2007, appellant filed a further motion for extension of time to file appellant's brief, seeking an additional 90-day delay so that the trial court may rule on appellant's application for writ of habeas corpus. We denied the request and ordered counsel to file appellant's brief. No brief was filed. Pursuant to Texas Rule of Appellate Procedure 38.8(b), we directed the trial court to conduct a hearing to determine why no brief was filed and whether counsel should be held in contempt of court. The trial court made the requested findings, declined to hold counsel in contempt of court and granted appellant 90 days, or until December 13, 2007, to file appellant's brief. Again, no brief was filed. Instead appellant filed a further motion to abate the appeals or in the alternative to extend time to file the brief until his habeas proceeding has not only been decided by the trial court, but also until after final disposition by the Court of Criminal Appeals at some unknown future date. We denied the motion. Rule 38.8 provides that we will not dismiss or consider an 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). A hearing has already been held as required under Rule 38.8. Appellant is not indigent and is represented by retained counsel. 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, on January 17, 2008, we ordered appellant to file a brief in these appeals on or before February 19, 2008. In our order, we advised appellant that if he failed to file his brief, we would decide the appeals on 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); 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). Appellant has not complied with our order of January 17, 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 right of appeal. See id. We therefore find that justice requires that these appeal be determined without briefs. This court has reviewed the entire record brought forth in these appeals. By stipulations signed March 28, 2006, the date the revocation judgments were signed, appellant judicially confessed to the violations of his probation alleged in the State's motions. He entered a plea of true in each case, but he reserved his right to appeal. We find no reversible error. Accordingly, the judgments of the trial court are affirmed.