Opinion
No. 14-04-01123-CR
Memorandum Opinion filed August 11, 2005. DO NOT PUBLISH. Tex.R.App.P. 47.2(b).
On Appeal from the 183rd District Court, Harris County, Texas, Trial Court Cause No. 960,103. Affirmed.
Panel consists of Chief Justice HEDGES and Justices YATES and ANDERSON.
MEMORANDUM OPINION
Appellant was convicted of the offense of possession of a controlled substance on September 24, 2004, the trial court sentenced him to confinement in a state jail facility for two years. Appellant filed a pro se notice of appeal. Appellant is not represented by counsel on appeal. On January 6, 2005, this court abated the appeal and ordered the trial court to conduct a hearing to determine if appellant was indigent and entitled to a free record and appointed counsel on appeal. On February 22, 2005, a record of the hearing conducted by the trial court was filed. The court determined that appellant was not indigent, and appellant stated he would hire an attorney to represent him on appeal. Accordingly, this court reinstated the appeal and set a new due date for the reporter's record at March 25, 2005. No reporter's record has been filed and the court reporter again informed this court that no arrangements for payment were made. No counsel made an appearance on behalf of appellant. On April 7, 2005, the clerk of this court notified appellant that we would consider and decide those issues that do not require a reporter's record unless appellant, within 15 days of our notice, provided this court with proof of payment for the record. See Tex.R.App.P. 37.3(c). Appellant filed no reply. Accordingly, on June 2, 2005, we ordered appellant to file a brief on or before July 1, 2005. No brief has been filed. Appellant has not complied with our order. 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); see also 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). 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. 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.