Kendrick, William T. v. Texas, the State Of ( 1996 )

•> 1
5
i tf
Glourt of Appeals
W\fty Ststrtrt of Qkxas at Dallas
JUDGMENT
WILLIAM T. KENDRICK, Appellant Appeal from the 203rd District Court of
Dallas County, Texas. (Tr.Ct.No. F91-
No. 05-92-01847-CR V. 23381-RP).
Opinion delivered per curiam, before
THE STATE OF TEXAS, Appellee Justices Lagarde, Kinkeade, and Maloney.
Based on the Court's opinion of this date, we AFFIRM the trial court's judgment.
Judgment entered December 23, 1996.
^ ZtZ^rz** JZ*M$M£t£L&
FRANCES MALONEY
JUSTICE ?
AFFIRM and Opinion Filed December 20, 1996
In The
(Uourt of Appeals
JTtf tt| Btstrtrt of (Eexas at lallas
No. 05-92-01847-CR
WILLIAM T. KENDRICK, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 203rd District Court
Dallas County, Texas
Trial Court Cause No. F91-23381-RP
OPINION PER CURIAM
Before Justices Lagarde, Kinkeade, and Maloney
The trial court convicted William T. Kendrick of felony driving while intoxicated and
assessed a five year sentence and a fine of $2,000.: Appellant timely appealed his
conviction. However, this appeal is before us without appellant's brief. For the following
reasons, we affirm the trial court's judgment.
On September 8, 1994, this Court ordered the trial court to conduct a hearing to
Appellant pleaded nolo contendere without the benefit of a plea bargain.
determine why appellant had not filed his brief. See Tex. R. App. P. 74(/)(2). The trial
court found that appellant wanted to prosecute his appeal, appellant was not indigent, and
that retained counsel had not abandoned the appeal. The record from this hearing shows
that appellant had not filed his brief because the statement of facts had never been filed
with this Court.
On November 2, 1994, this Court adopted the trial court's findings and ordered
appellant to file the statement of facts by November 22, 1994 and a brief by December 2,
1994. On December 9, 1994, appellant filed the statement of facts with this Court. On
December 12, 1994, we ordered appellant to file his brief by January 11, 1995. Again,
appellant did not file a brief. On November 6, 1996, we ordered appellant to file his brief
by December 6, 1996. As of the date of this opinion, appellant has not filed a brief.
The Texas Rules of Appellate Procedure provide that we should not dismiss nor
consider a criminal appeal without briefs unless appellant (1) no longer desires to prosecute
the appeal, or (2) is not indigent and has failed to make the necessary arrangements for
filing a brief. See Tex. R. App. P. 74(/)(2). This rule protects an indigent appellant from
appointed counsel's failure to provide a brief. Coleman v. State, 11A S.W.2d 736, 738 (Tex.
App.-Houston [14th Dist.] 1989, no pet.). The Coleman court opined that no accused
should be denied his right of appeal; however, justice requires that an appellant exercise his
appellate rights within the rules of appellate procedure. Coleman, 11A S.W.2d at 738-39.
The Coleman court also concluded that requiring any appellant to follow the rules does not
-2-
improperly infringe on his right of appeal. Id.
Here, the trial court sentenced appellant on July 30, 1992. He filed his notice of
appeal that same day. We ordered the trial court to conduct a hearing to determine why
appellant did not file his brief. The trial court found that appellant wished to prosecute his
appeal and his retained attorney had not abandoned appellant's appeal. Rather, the
attorney was waiting for the statement of facts to be filed in this Court. That statement of
facts was filed over two years ago.
Appellant has not filed a brief since the statement of facts was filed in this Court.
Instead, appellant has ignored our communications concerning the filing of his brief.
Therefore, we conclude that the interests of justice require that this appeal be submitted
without briefs upon the record before us. See Lott v. State, 874 S.W.2d 687, 688 (Tex.
Crim. App. 1994).
Because no brief has been filed, no contentions of error are properly before us for
review. In the interest of justice, we have reviewed the entire record. Our examination of
the record does not disclose any fundamental error. We affirm the trial court's judgment.
PER CURIAM
Do Not Publish
Tex. R. App. P. 90
921847F.U05
-3-