Stephen Andrew Hall v. State

Opinion

COURT OF APPEALS SECOND DISTRICT OF TEXAS FORT WORTH

NO. 02-12-00233-CR

STEPHEN ANDREW HALL APPELLANT

V.

THE STATE OF TEXAS STATE

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FROM THE 371ST DISTRICT COURT OF TARRANT COUNTY

MEMORANDUM OPINION1

Appellant Stephen Andrew Hall, pro se, appeals his conviction for DWI—

felony repetition. See Tex. Penal Code Ann. §§ 12.42(d), 49.04(a), 49.09(b)(2)

(West Supp. 2012). We will affirm.

One day in July 2011, a police officer stopped Hall’s vehicle after

observing him commit several traffic offenses. Hall had alcohol on his breath;

1 See Tex. R. App. P. 47.4. watery, bloodshot eyes; and slurred speech. The officer conducted a field

sobriety test and then arrested Hall for DWI. His blood alcohol content was .18.

A grand jury later indicted Hall for DWI—felony repetition.

In the months leading up to his trial, Hall was represented by two different

court-appointed attorneys. Eventually, however, the trial court allowed Hall to

represent himself after he complained of irreconcilable conflicts with the second

attorney.2 Hall pleaded not guilty to the charged offense, but a jury ultimately

convicted him, and the trial court sentenced him to forty-five years’ confinement.

Hall timely filed a notice of appeal, and the trial court appointed appellate

counsel for him. On July 12, 2012, this court abated and remanded the appeal to

the trial court to consider Hall’s request to proceed on appeal pro se. Hall

informed the trial court that he wanted to represent himself on appeal, and the

trial court ordered his court-appointed appellate counsel removed. Thereafter,

Hall filed, and this court denied, numerous motions, including a ―Motion For

Understanding Of [Deceit] Out Of Necessity,‖ a ―Motion For Original Exhibits And

Court Ordered Evidence To Be Made Available To Appeals Court,‖ a ―Motion For

Appellate Court Assistance In Procuring Trial Records,‖ a motion that we

construed as a request to abate the appeal to the trial court to hold a hearing on

alleged errors and deficiencies in the record, a ―Motion For Notice And Hearing,‖

2 The trial court thoroughly informed Hall of the dangers and disadvantages of self-representation and found that he had knowingly and voluntarily waived his right to counsel.

2 and a ―Motion To Cease All Stall Tactics So The Appellant Can Bring [Trial

attorney] To Justice For Rewriting Transcripts.‖ This court also abated the

appeal to the trial court for a second time to consider issues related to Hall’s

motion for new trial.

On December 13, 2012, the court notified Hall that his appellate brief

would be due on January 10, 2013. On January 15, 2013, the court granted

Hall’s motion for extension of time to file his brief and ordered the brief to be filed

by February 11, 2013. On February 14, 2013, the court granted Hall’s motion for

extension of time to file his appellate brief and ordered the brief to be filed by

March 13, 2013. On May 3, 2013, the court notified Hall that his brief had not

been filed and that it would be due by May 13, 2013. On May 23, 2013, the court

notified Hall that if he did not file his brief by June 10, 2013, the court would

consider the appeal without briefs and review the case only for fundamental

error. On June 24, 2013, the court issued an order stating that Hall had not filed

an appellate brief and that the appeal would be submitted without oral argument

on July 31, 2013.

Rule 38.8(b)(4) provides that an appellate court may consider an appeal

without briefs ―[i]f the trial court has found that the appellant no longer desires to

prosecute the appeal, or that the appellant is not indigent but has not made the

necessary arrangements for filing a brief.‖ Tex. R. App. P. 38.8(b)(4). Rule

38.8(b)(4) protects an indigent appellant from the failure of his appointed counsel

3 to file a brief. Coleman v. State, 774 S.W.2d 736, 738–39 (Tex. App.—Houston

[14th Dist.] 1989, no writ). The rule does not address the situation where, as

here, the appellant has asserted his constitutional right to self-representation, the

trial court has held a hearing on the matter and allowed the appellant to proceed

without counsel, and the delay in filing the appellant’s brief was caused by

appellant. See Curry v. State, No. 12-11-00139-CR, 2013 WL 1760624, at *2

(Tex. App.—Tyler Apr. 24, 2013, no pet.) (mem. op., not designated for

publication). Other appellate courts that have been confronted with this same set

of circumstances have determined that they could consider the appeal without

briefs. See id.; see also Lott v. State, 874 S.W.2d 687, 687–88 (Tex. Crim. App.

1994); Aguero v. State, Nos. 14-05-00799-CR, 14-05-00800-CR, 14-05-00802-

CR, 2006 WL 2560281, at *1–2 (Tex. App.—Houston [14th Dist.] Sept. 7, 2006,

no pet.) (mem. op., not designated for publication); Wade v. State, 31 S.W.3d

723, 725 (Tex. App.—Houston [1st Dist.] 2000, pet. ref’d). We agree with these

courts and will consider this appeal without briefs.3

Having reviewed the record for fundamental error, and having found none,

we affirm the trial court’s judgment. See Lott, 874 S.W.2d at 688; Josey v. State,

3 There is no need to abate and remand this case to the trial court again. See Lott, 874 S.W.2d at 688 n.2.

4 No. 02-11-00513-CR, 2013 WL 4507646 (Tex. App.—Fort Worth Aug. 22, 2013,

no pet. h.) (mem. op., not designated for publication); Wade, 31 S.W.3d at 725.

BILL MEIER JUSTICE

PANEL: LIVINGSTON, C.J.; DAUPHINOT and MEIER, JJ.

DO NOT PUBLISH Tex. R. App. P. 47.2(b)

DELIVERED: September 12, 2013