Chikevia Rena Roberts v. State

• Court: Court of Appeals of Texas
• Decided: March 11, 2014
• Docket: 01-12-00723-CR
• Status: Published

Opinion

Opinion issued March 11, 2014

In The

Court of Appeals For The

First District of Texas ———————————— NOS. 01-12-00723-CR, 01-12-00724-CR & 01-12-00725-CR ——————————— CHIKEVIA RENA ROBERTS, Appellant V. THE STATE OF TEXAS, Appellee

On Appeal from the 337th District Court Harris County, Texas Trial Court Case Nos. 1305295, 1305843 & 1305927

MEMORANDUM OPINION

Appellant, Chikevia Rena Roberts, pleaded guilty without an agreed

recommendation on punishment to two counts of burglary of a habitation with

intent to commit theft and one count of burglary of a building with intent to commit theft. The trial court found appellant guilty of all three offenses and

assessed her punishment at six years’ confinement for each burglary of a habitation

conviction and at eighteen months’ confinement for the burglary of a building

conviction, with the sentences to run concurrently. The trial court certified her

right to appeal, and appellant filed a timely notice of appeal.

Appellant failed to make arrangements to pay for the reporter’s record, and

this Court notified appellant that her appeal could be considered without a

reporter’s record if she did not make arrangements to pay for the record or file a

motion to abate within five days of receiving our October 30, 2012 notice.

Appellant did not respond, and, accordingly, this Court issued an order on

November 30, 2012, stating that the case would be considered on issues or points

that do not require a reporter’s record and ordering that appellant’s brief be filed

within thirty days.

Appellant failed to file a brief. On February 20, 2013, this Court abated the

appeal and remanded the case to the trial court to hold a hearing to determine,

among other things, whether appellant wished to prosecute the appeal and whether

her attorney, Lott J. Brooks, III, had abandoned the appeal. The trial court held the

requested hearing on March 11, 2013, at which appellant and her attorney both

appeared. Appellant stated that she wished to continue prosecuting the appeal and

that she wished to continue with Brooks as her counsel. Brooks also stated that he

2 would continue to prosecute the appeal on appellant’s behalf. Brooks further

testified that appellant had not fully paid his attorney’s fees but that “she’s still in

the process” and that he felt comfortable continuing to represent her. He stated

that there were no issues with payment of fees or communication with appellant.

The trial court ordered Brooks to file a brief on appellant’s behalf within thirty

days.

On April 18, 2013, Brooks filed a brief pursuant to Anders v. California, 386

U.S. 738, 87 S. Ct. 1396 (1967), and a motion to withdraw as counsel. We struck

this brief, on the ground that the procedural safeguards provided in Anders are not

applicable to an appellant who is represented by a retained attorney. See Nguyen v.

State, 11 S.W.3d 376, 378–79 (Tex. App.—Houston [14th Dist.] 2000, no pet.).

We also denied Brooks’s motion to withdraw and ordered him to file briefs on the

merits or a motion complying with Texas Rule of Appellate Procedure 6.5 within

fifteen days of our April 24, 2013 order.

Brooks subsequently filed a compliant motion to withdraw, which this Court

granted in an order dated June 18, 2013. In that same order, we notified appellant

that she had the right to (1) retain other counsel or (2) move for an extension of

time to file a pro se brief and that she was required file her brief or extension of

time no later than thirty days from the date of the order. See Knotts v. State, 31

S.W.3d 821, 822 (Tex. App.—Houston [1st Dist.] 2000, order). We further

3 informed appellant that unless she retained counsel who filed a brief or filed a

motion for extension of time to file a pro se brief, the appeal would be set for

submission and considered without briefs on the merits alone.

We received no response to our June 18, 2013 order. Therefore, on

December 13, 2013, we set the appeal for submission on January 21, 2014, and

notified the parties, as required by the Rules of Appellate Procedure. See TEX. R.

APP. P. 38.8(b). Again, we received no response.

Accordingly, we consider the appeal without briefs. 1 We have reviewed the

record for fundamental error and find none. See Ashcraft v. State, 802 S.W.2d 905,

906 (Tex. App.—Fort Worth 1991, no pet.); Meza v. State, 742 S.W.2d 708, 708–

09 (Tex. App.—Corpus Christi 1987, no pet.).

1 Texas Rule of Appellate Procedure 38.8(b)(4) provides that an appellate court may consider an appeal in a criminal case without briefs if the trial court has found that the appellant is not indigent but has not made the necessary arrangements for filing a brief, as justice may require. TEX. R. APP. P. 38.8(b)(4). The rules also provide that an appellate court may suspend a rule’s operation in a particular case and order a different procedure to expedite a decision or for other good cause. See TEX. R. APP. P. 2. The trial court has not made Rule 38.8(b)(4) findings in this appeal since Brooks filed a motion to withdraw after concluding the appeal was meritless. We observe, however, that the record does not contain a finding of indigence, and appellant has not suggested to the trial court or to this Court that she is indigent. In spite of multiple notices, she has failed to make arrangements to file a brief. Accordingly, we hold that good cause exists to suspend the requirement that the Rule 38.8(b)(4) finding be made by the trial court because: (1) appellant’s retained counsel concluded that the appeal was frivolous and withdrew from representation, (2) after we gave appellant an opportunity to retain other counsel, she did not communicate with the Court either through counsel or pro se, and (3) abatement to the trial court for additional Rule 38.8(b)(4) findings would be a waste of judicial resources in this case.

4 We affirm the judgment of the trial court.

PER CURIAM

Panel consists of Justices Keyes, Bland, and Brown.

Do not publish. TEX. R. APP. P. 47.2(b).