Joshua Feselier v. State ( 2015 )

Motions Denied; Order filed July 30, 2015
In The
Fourteenth Court of Appeals
____________
NO. 14-15-00112-CR
NO. 14-15-00113-CR
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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 appeals his convictions for prostitution and sexual assault of a
child 14 to 17 years of age. On June 4, 2015, this court granted retained counsel’s
motion to withdraw, which was filed on the grounds that appellant “fired” counsel.
Because the court reporter for the 232nd District Court notified this court that no
payment had been made for the reporter’s record, on June 23, 2015, this court
abated the appeals to determine whether appellant desires to prosecute his appeals,
whether he is indigent, and whether he is entitled to a free record and/or
appointment of counsel on appeal.
On July 3, 2015, appellant filed his first motion for appointment of counsel
on appeal in cause number 14-15-00112-CR.1 On July 10, 2015, the trial court held
a hearing pursuant to this court’s abatement order. The trial court arranged a video
conference to permit appellant to participate in the hearing. Officer Jeff Jacoway, a
law librarian officer at the Texas Department of Criminal Justice, appeared at the
hearing via video conference. Jacoway informed the trial court that he went to
appellant’s cell, informed appellant of the hearing, attempted to take appellant to
the law library to attend the hearing via video, but appellant refused to attend.
Jacoway informed the court that appellant was physically able to attend, but
refused to attend the hearing.
At the conclusion of the hearing, the trial court stated on the record that
appellant posted $80,000 worth of cash bonds prior to his conviction. The trial
court appointed appellant an attorney at trial despite the court’s finding that
appellant was not indigent. The trial court found appellant was not indigent.
On July 20, 2015,2 appellant filed his second motion for appointment of
counsel on appeal in cause number 14-15-00112-CR. On July 22, 2015, the trial
court clerk filed the trial court’s findings of fact and conclusions of law in both
cause numbers pursuant to this court’s abatement order. In those findings and
conclusions, signed July 10, 2015, the trial court found that “[a]ppellant refused to
participate in today’s video-conference. Therefore, this Court finds that he does not
desire to prosecute his appeal.” The trial court further found that appellant is not
1
Appellant has not filed any motions in 14-15-00113-CR; because the appeals are consolidated,
we consider appellant’s motions in both cause numbers.
2
The motion was signed by appellant on July 15, 2015, five days after the hearing.
indigent and not entitled to a free record or appointed counsel on appeal.
Because the trial court has already held a hearing on the issue of whether
appellant is entitled to appointment of counsel, we reinstate the appeal, and deny
appellant’s motions for appointment of counsel. We further order appellant to file a
brief in this appeal on or before August 28, 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
Panel consists of Chief Justice Frost and Justices Jamison and Busby.
Do Not Publish — Tex. R. App. P. 47.2(b).