David Earl Sweed v. State ( 2015 )

Order filed June 25, 2015
In The
Fourteenth Court of Appeals
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NO. 14-15-00145-CR
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DAVID EARL SWEED, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 335th District Court
Washington County, Texas
Trial Court Cause No. 14907
ORDER
Appellant is not represented by counsel. On May 19, 2015, this court abated
the appeal to determine whether appellant was entitled to appointed counsel on
appeal. The trial court held a hearing and determined that appellant desires to
represent himself on appeal.
No brief has been filed. 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. 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 that requires this court to
once again send this matter back to the trial court, we decline to do so.
Therefore, we REINSTATE the appeal and ORDER appellant to file a brief
in this appeal on or before July 27, 2015. 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