Hassan Hoteit v. State

• Court: Court of Appeals of Texas
• Decided: April 24, 2008
• Docket: 14-06-01072-CR
• Status: Published

Opinion

Affirmed and Memorandum Opinion filed April 24, 2008

Affirmed and Memorandum Opinion filed April 24, 2008.

In The

Fourteenth Court of Appeals

____________

NO. 14-06-01072-CR

HASSAN HOTEIT, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 174th District Court

Harris County, Texas

Trial Court Cause No. 1076531

M E M O R A N D U M   O P I N I O N

Appellant was convicted of felony racing on the highway.  On August 23, 2006, the court sentenced appellant to confinement for ten years in the Institutional Division of the Texas Department of Criminal Justice, probated for ten years and assessed a $10,000 fine.  Appellant filed a motion for new trial on September 22, 2006.  Appellant=s notice of appeal was filed November 17, 2006. 

Appellant is represented by retained counsel in this appeal.  The clerk=s record was filed December 13, 2006.  Although it was due on December 20, 2006, the reporter=s record was not filed.  The court reporter notified this court that appellant had not made payment arrangements for preparation of the record.  Accordingly, on January 18, 2007, this court notified appellant that unless he provided proof of payment for preparation of the record within 15 days, the court would consider and decide the appeal without the benefit of a reporter=s record. 

On February 6, 2007, the court reporter notified this court that a down payment for the record had been made, and she requested an extension of time to file the record.  The court granted an extension of time until April 6, 2007, but noted that no further extensions would be granted. 

The record was not filed, and the court reporter notified this court that no further payments had been made.  Therefore, on May 10, 2007, the court ordered appellant to provide proof of payment for preparation of the record within 15 days or the court would consider the appeal without the benefit of the reporter=s record.  No response to this court=s order was filed.  On May 31, 2007, the court ordered appellant=s retained counsel to file the brief in this appeal on or before July 2, 2007.

We granted an extension of time to file appellant=s brief until August 13, 2007.  No brief was filed.  On August 22, 2007, this court notified appellant=s counsel that no brief had been filed.  No response was filed.  We then abated the appeal and ordered a hearing in the trial court.  Appellant=s counsel did not appear at the hearing.  On October 25, 2007, we reinstated the appeal and ordered appellant=s counsel to file a brief on or before November 26, 2007.  Appellant filed a further motion for a 90-day extension of time.  No brief was filed.  We denied the request and ordered counsel to file a brief in this appeal on or before January 28, 2008, effectively granting appellant a sixty-day extension.  Again, no brief or further request for an extension of time was filed.

Therefore, on February 28, 2008, we ordered appellant=s retained counsel to file a brief in this appeal on or before March 31, 2008.  The order stated that no further extensions of time would be granted and warned that if counsel did not timely file the brief as ordered, the court would consider and decide the appeal on the record without the benefit of appellant=s brief.  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.BHouston [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 Aas justice may require@ when a pro se appellant has not complied with the rules of appellate procedure).  No brief was filed. 

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.  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, Athe 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, but appellant=s retained counsel failed to appear at the hearing.  We decline to order a second hearing in the trial court.  Appellant has not complied with our order of February 28, 2008.  Pursuant to that order, no further extensions of time will be granted.

While we believe that no accused should be denied his right of appeal, we also believe that Ajustice 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.

PER CURIAM

Judgment rendered and Memorandum Opinion filed April 24, 2008.

Panel consists of Chief Justice Hedges and Justices Fowler and Boyce.

Do Not Publish C Tex. R. App. P. 47.2(b).