Aguero, David Segovia v. State ( 2006 )

Affirmed and Memorandum Opinion filed September 7, 2006

Affirmed and Memorandum Opinion filed September 7, 2006.

In The

Fourteenth Court of Appeals

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NO. 14-05-00799-CR

NO. 14-05-00800-CR

NO. 14-05-00802-CR

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DAVID SEGOVIA AGUERO, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the County Court at Law No. 2 & Probate Court

Brazoria County, Texas

Trial Court Cause Nos. 133743, 133748, & 133749

M E M O R A N D U M  O P I N I O N

After a jury trial, appellant was convicted of three violations of sewage disposal regulations pursuant to section 7.173 and 7.174 of the Texas Water Code.  On June 7, 2005, the trial court assessed punishment in accordance with the jury=s verdict at a fine of $500, plus court costs, in each case.  Appellant filed a pro se notice of appeal of all three convictions. 

Appellant is not represented by counsel on appeal.  Appellant=s brief was originally due on October 12, 2005, but it has not been filed.  This court granted an extension of time to file the brief until December 2, 2005.  Appellant submitted a non-conforming brief, which was returned for correction.  See Tex. R. App. P. 9.4(i) (permitting return of non-conforming documents for correction).  Appellant requested and was granted a second extension of time to file his brief, but no brief was filed.  On February 23, 2006, appellant filed a further request for extension of time.  The court denied the request and ordered the trial court to conduct a hearing pursuant to Texas Rule of Appellate Procedure 38.8 to determine the reasons for appellant=s failure to file his brief.  A record of the hearing in the trial court was filed on June 8, 2006.  The trial court made findings that appellant is not indigent, he had not abandoned his appeal, and appellant would file his brief on or before July 1, 2006.  No brief was filed.  Appellant and the trial court were notified on July 11, 2006, that no brief had been received.  No response was received.

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.  The rule further provides that under appropriate circumstances, Athe 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 which requires this court to once again send this matter back to the trial court, we decline to do so. Therefore, on July 27, 2006, we ordered appellant to file a brief in this appeal on or before August 25, 2006.  In our order, we advised appellant that if he failed to file his brief, we would 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 Aas justice may require@ when a pro se appellant has not complied with the rules of appellate procedure).

Appellant has not complied with our order of July 27, 2006.  While we believe that no accused should be denied his right of appeal, we also believe that Ajustice requires@ that the exercise of this right of appeal must be held within the framework of the rules of appellate procedure.  See Coleman, 774 S.W.2d at 738-39.  We also believe that requiring any appellant to follow the rules does not infringe upon his rights of appeal.  See id.  We therefore find that justice requires that this appeal be determined without a brief.

This court has reviewed the entire record brought forth in each appeal and we find no reversible error.  Accordingly, the judgments of the trial court are affirmed.

PER CURIAM

Judgment rendered and Memorandum Opinion filed September 7, 2006.

Panel consists of Chief Justice Hedges and Justices Yates and Seymore.

Do not publish C Tex. R. App. P. 47.2(b).