McCartney, David Wayne v. State

Opinion

Affirmed and Opinion filed February 27, 2003

Affirmed and Opinion filed February 27, 2003.

In The

Fourteenth Court of Appeals

____________

NO. 14-01-01255-CR

NO. 14-01-01258-CR

____________

DAVID WAYNE McCARTNEY, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 185th District Court

Harris County, Texas

Trial Court Cause Nos. 875,270 & 876,680

M E M O R A N D U M  O P I N I O N

After a jury trial, appellant was convicted of the offense of indecency with a child in trial court cause number 875,270, and sentenced to confinement in the Institutional Division of the Texas Department of Criminal Justice for five years, with a $10,000 fine, on November 15, 2001.  At the same time, he was convicted of the offense of unlawful restraint in cause number 876,680, and sentenced to two years confinement in a state jail facility, with a $10,000 fine.  Appellant filed a pro se notice of appeal.

Appellant is not represented by counsel on appeal.  The reporter=s record in this appeal was due January 14, 2002, and was not filed.  Carrie Logan, the court reporter, informed the court that appellant has not paid or made arrangements to pay the reporter=s fee to prepare the reporter=s record.  See Tex. R. App. P. 37.3(c)(2)(A).  Accordingly, on March 7, 2002, this Court abated the appeal and ordered the trial court to conduct a hearing to determine if appellant is indigent and entitled to a free record and appointment of counsel.  See Tex. R. App. P. 35.3(c).

On March 22, 2002, the trial court conducted a hearing.  The trial court ordered preparation of the reporter=s record, but the court did not find appellant indigent for purposes of appointment of counsel.  The court advised appellant that he could represent himself on appeal, or he could retain counsel, at which time he would need to arrange to pay for the record.  The reporter=s record from the trial was filed on April 4, 2002.  A record of the March 22, 2002 hearing was filed in this Court on April 26, 2002, at which time the appeal was ordered reinstated, and appellant=s brief was ordered filed by May 27, 2002.  Appellant requested and was granted an extension of time to file his brief until July 19, 2002, with the notation that no further extensions would be granted absent exceptional circumstances.

Appellant=s brief was not filed.  Appellant and the trial court were notified on July 23, 2002, that no brief had been received.  Appellant responded that he was indigent and wanted appointment of counsel.  He stated the trial court had not properly considered his indigent status for purposes of appeal, but instead had relied only on testimony from trial.  Accordingly, on August 8, 2002, this court again abated the appeal and ordered a hearing to determine why appellant had not filed a brief in this appeal, and directed the court to make findings, including whether appellant is indigent.  On August 27, 2002, the trial court conducted the hearing, and a record of that hearing was filed in this court on September 5, 2002.  The court again found appellant is not indigent for purposes of appeal. 

Accordingly, we again reinstated the appeal.  This Court received a further complaint from appellant on September 10, 2002, concerning the trial court=s failure to find him indigent. On September 12, 2002, the Court issued an order finding no abuse of discretion in the trial court=s finding that appellant was not indigent.  We ordered appellant to file a brief in this appeal on or before October 28, 2002.  No brief was filed.  Appellant requested and received an extension of time until December 30, 2002, with the notation that no further extensions would be granted absent exceptional circumstances.  No brief was filed.  Instead, on December 31, 2002, appellant again filed a request for appointed counsel.  We denied appellant=s request.

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).

Two hearings have already been held concerning appellant=s indigent status, including a hearing 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.  Therefore, on January 23, 2003, we ordered appellant to file a brief in this appeal on or before February 18, 2003.  In our order, we advised appellant that if he failed to file his brief, we would 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 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).

Appellant has not complied with our order of January 23, 2003.  Instead, he filed a further request for extension of time to file his brief.  Appellant=s motion is denied.

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 Opinion filed February 27, 2003.

Panel consists of Chief Justice Brister and Justices Fowler and Edelman.

Do not publish - Tex. R. App. P. 47.2(b).