William David Golden v. State ( 2011 )

Order filed October 4, 2011.
In The
Fourteenth Court of Appeals
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NO. 14-10-00668-CR
NO. 14-10-00669-CR
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WILLIAM DAVID GOLDEN, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 176th District Court
Harris County, Texas
Trial Court Cause Nos. 1165978 & 1165979
ORDER
Appellant is not represented by counsel. Appellant’s brief was originally due on
January 3, 2011, but has not been filed. On June 13, 2011, time to file appellant’s brief
expired without a brief and no motion for extension of time was filed. See Tex. R. App. P.
38.6(a).
Accordingly, on July 7, 2011, pursuant to Texas Rule of Appellate Procedure
38.8(b), this Court ordered the judge of the 176th District Court to immediately conduct a
hearing to determine (a) whether appellant desires to prosecute his appeal; (b) whether
appellant is indigent; (c) if not indigent, whether retained counsel has abandoned the
appeal or whether appellant has failed to make necessary arrangements for filing a brief.
A record of that hearing was filed with this Court on August 19, 2011. At the hearing the
trial court found that appellant was capable and willing to represent himself.
More than one year has now passed since appellant was sentenced, and no appellate
brief has been filed. This court has been very lenient with the appellant, recognizing he is
at a disadvantage representing himself. Although the appellant has had ample time in
which to prepare his brief, he has failed to do so. This court has now reached the
inescapable conclusion that the appellant will not file a meaningful brief in this appeal.
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. It is clear that
the rule was designed to protect an indigent appellant from the failure of his appointed
counsel to provide a brief. 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 issue the
following order:
We order appellant to file a brief in this appeal on or before November 3, 2011. If
appellant fails to file his brief, 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.BHouston [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
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