Opinion
NO. 14-15-01025-CR
03-03-2016
THOMAS DEWAYNE MORELAND, Appellant v. THE STATE OF TEXAS, Appellee
On Appeal from the 149th District Court Brazoria County, Texas
Trial Court Cause No. 54671-2
ORDER
This is an appeal from an order denying appellant's motion for post-conviction DNA testing and for counsel. Appellant is not represented by counsel. On February 5, 2016, time to file appellant's brief expired without a brief and no motion for extension of time was filed. See Tex. R. App. P. 38.6(a). The parties were notified on February 8, 2016, that no brief had been received. No response from appellant has been received.
This is appellant's second appeal regarding DNA testing. In late 2013, the trial court denied his motion for post-conviction DNA testing and for counsel. We affirmed the order. See Moreland v. State, No. 14-14-00035-CR, 2014 WL 3051298 (Tex. App.—Houston [14th Dist.] July 3, 2014, no pet.) (per curiam) (mem. op.) (not designated for publication).
A person is not entitled to appointed counsel on a motion for post-conviction DNA testing unless the trial court finds reasonable grounds for a motion to be filed and determines the person is indigent. Tex. Code Crim. Proc. Ann. art. 64.01(c). The trial court found appellant was not entitled to appointed counsel.
Generally, we may 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. See Tex. R. App. P. 38.8. Rule 38.8 was designed to protect an indigent appellant from the failure of his appointed counsel to provide a brief. Coleman v. State, 774 S.W.2d 736, 738 (Tex. App.—Houston [14th Dist.] 1989, no pet.); accord Wade v. State, 31 S.W.3d 723, 725 (Tex. App.—Houston [1st Dist.] 2000, no pet.) (relying on Coleman). Rule 38.8 has no role in an appeal where, as here, the appellant is not entitled to appointed counsel. E.g., Weekley v. State, No. 05-15-00037-CR, 2015 WL 4880414, *1 (Tex. App.—Dallas Aug. 14, 2015, no pet.) (mem. op.) (not designated for publication) (noting court had ordered pro se appellant to file brief in appeal from order denying motion for post-conviction DNA testing).
Therefore, we ORDER appellant to file a brief in this appeal on or before April 4, 2016. If appellant fails to file his 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 where pro se appellant failed to file a brief after being admonished); Weekley, 2015 WL 4880414, *1 (affirming order denying motion for post-conviction DNA testing on record where pro se appellant failed to file a brief after being admonished).
PER CURIAM