Opinion
NO. 14-16-00506-CR
09-29-2016
RANDY RANDALL RODGERS, Appellant v. THE STATE OF TEXAS, Appellee
On Appeal from the 212th District Court Galveston County, Texas
Trial Court Cause No. 14CR3525
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. Rule 38.8 of the Texas Rules of Appellate Procedure provides that we may 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. Tex. R. App. P. 38.8. 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, "the 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. 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, we ORDER appellant to file a brief in this appeal on or before October 31, 2016. If appellant fails to file his brief as ordered, we will 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.—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