Opinion
NO. 14-15-00112-CRNO. 14-15-00113-CR
02-25-2016
JOSHUA FESELIER, Appellant v. THE STATE OF TEXAS, Appellee
On Appeal from the 232nd District Court Harris County, Texas
Trial Court Cause Nos. 1390943 & 1452064
ORDER
Appellant is not represented by counsel. The trial court has previously determined that appellant is not indigent for purposes of appointment of counsel on appeal. No brief has been filed. Texas Rule of Appellate Procedure 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 the appeal or that appellant is not indigent and has failed to make necessary arrangements for filing a brief. Tex. R. App. P. 38.8. 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, "the appellate court may consider the appeal without briefs, as justice may require." Tex. R. App. P. 38.8 (b)(4).
A hearing has been held as required under Rule 38.8. Because the trial court already has conducted one hearing to make the findings required under Rule 38.8, and we can find nothing in the rules or case law that requires this court to once again send this matter back to the trial court, we decline to do so.
On December 3, 2015, this court ordered appellant to file a brief on or before December 30, 2015. Appellant was instructed that if he did not file a brief this court would decide the appeals on the record before the court. We have since granted appellant two extensions of time to file his brief until February 1, 2016. When we granted the last extension, we noted that no further extensions would be granted absent exceptional circumstances. No brief was filed. On February 19, 2016, appellant filed a motion for a further extension of time.
We deny the request for an extension and issue the following order:
We order appellant to file a brief in these appeals on or before March 15, 2016. If appellant fails to file his brief as ordered, we will decide the appeals 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.—Houston [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 "as justice may require" when a pro se appellant has not complied with the rules of appellate procedure).
PER CURIAM Panel consists of Chief Justice Frost and Justices Boyce and Wise.