Opinion
NO. 14-16-00413-CR NO. 14-16-00414-CR
10-31-2017
OVERILLE DENTON THOMPSON, JR, Appellant v. THE STATE OF TEXAS, Appellee
On Appeal from the 185th District Court Harris County, Texas
Trial Court Cause Nos. 1445929 and 1445930
ORDER
Appellant was previously represented by appointed counsel, who filed a brief on appellant's behalf. After the brief was filed, appellant filed a pro se motion to withdraw his lawyer's brief and represent himself on appeal. We abated the appeals for the trial court to consider appellant's request to discharge his counsel and represent himself. The trial court granted his request.
We reinstated the appeals, struck counsel's brief, and set appellant's brief due by June 1, 2017. Since that time, we have granted him 123 days of extension to file his brief. When we granted the most recent extension, we stated no further extensions would be granted absent extraordinary circumstances. No brief has been filed.
We may not dismiss or consider the appeal without briefs unless it is shown the appellant no longer desires to prosecute his appeal or he is not indigent and has failed to make necessary arrangements for filing a brief. Tex. R. App. P. 38.8. It is clear Rule 38.8 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, and the trial court has already found that appellant desires to prosecute his appeals and waives the right to counsel. We can find nothing in the rules or case law that requires this court to send this matter back to the trial court for a second hearing if appellant does not file a brief. Accordingly, we order as follow.
If appellant does not file a brief in these appeals by November 30, 2017, we will decide the appeals based on the records 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