Bruce Lee Wefer v. State

NO. 07-01-0429-CR
IN THE COURT OF APPEALS
FOR THE SEVENTH DISTRICT OF TEXAS
AT AMARILLO
PANEL E
NOVEMBER 26, 2002
______________________________
BRUCE LEE WEFER,
Appellant
v.
THE STATE OF TEXAS,
Appellee
_________________________________
FROM THE COUNTY CRIMINAL COURT AT LAW NO. 3 OF HARRIS COUNTY;
NO. 1,034,841; HON. DONALD W. JACKSON, PRESIDING
_________________________________
Before QUINN and REAVIS, JJ., and BOYD, SJ.1
Bruce Lee Wefer (appellant) appeals his conviction for driving while intoxicated. The
conviction was based upon his plea of nolo contendere. The complete appellate record
was filed by November 13, 2001. Therefore, his brief was due on December 13, 2001. It
was not filed. Instead, appellant’s retained counsel of record moved to withdraw, which
motion was granted on February 21, 2002. Furthermore, the briefing deadline was
extended until April 22, 2002. After appellant failed to file a brief by that date, the cause
was abated per Texas Rule of Appellate Procedure 38.8(b).
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John T. Boyd, Chief Justice (Re t.), Seventh C ourt of Appeals, sitting by assignment. Tex. Gov’t Code
Ann. §75.00 2(a)(1) (V erno n Su pp. 2002 ).
At the Rule 38.8(b) hearing before the trial court, appellant stated that he desired
to pursue the appeal. Thus, the trial court adjourned the hearing to permit him to obtain
alternate counsel. Approximately one month later, it reconvened the hearing. Appellant
did not appear at the proceeding. Instead, Christopher Samuelson appeared and told the
court that he had been appellant’s counsel and that he had been allowed to withdraw. So
too did he state that appellant failed to pay the entire fee due him. At that time, the court
found that appellant 1) was not indigent and 2) had abandoned his appeal. We
subsequently reinstated the cause on our docket and set October 21, 2002, as appellant’s
new briefing deadline.
Appellant did not file a brief by October 21, 2002. Instead, he informed this court
by letter that he had “saved up enough money to have [his] lawyer file it.” Given this, we
extended the briefing deadline to November 21, 2002, and told appellant that if his brief
was not filed by that time, the cause would be submitted on the record. November 21st
passed, and no brief has been received to date.
Rule 38.8(b)(1) states that an “appellant’s failure to timely file a brief does not
authorize either dismissal of the appeal or, except as provided in [Rule 38.8(b)(4)]
consideration of the appeal without briefs.” In other words, while the court cannot dismiss
the appeal when the appellant fails to timely brief the dispute, it may consider the cause
without briefs if the terms of Rule 38.8(b)(4) are met. Those terms require either that “the
trial court has found that the appellant no longer desires to prosecute the appeal, or that
the appellant is not indigent but has not made the necessary arrangements for filing a brief
. . . .” TEX . R. APP. PROC . 38.8(b)(4); see Lott v. State, 874 S.W.2d 687, 688 (Tex. Crim.
App. 1994) (reviewing the record for fundamental error when appellant failed to file a brief
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after notification of the default); Wade v. State, 31 S.W.3d 723, 724-25 (Tex.
App.–Houston [1st Dist.] 2000, pet. ref’d) (doing the same); Meza v. State, 742 S.W.2d 708,
708-09 (Tex. App.–Corpus Christi 1987, no pet.) (doing the same and after the trial court
determined that the appellant had abandoned the appeal).
As previously mentioned, appellant’s briefing deadlines repeatedly have been
extended. However, no brief has been filed in compliance with those extensions. More
importantly, we remanded the proceeding per Texas Rule of Appellate Procedure
38.8(b)(2) to determine appellant’s indigence, if any, and desire to pursue the appeal.
Thereafter, the trial court held that appellant 1) was not indigent, 2) failed to arrange
payment of the entire fee due his attorney, and 3) abandoned the appeal. To the extent
that the trial court so concluded, that determination is tantamount to finding that
prosecution of the appeal was no longer desired and that appellant failed to make the
necessary arrangements to file the brief. And, appellant’s failure to file a brief in
compliance with the new deadlines established after abatement further evinces not only
a continued desire to no longer appeal but also a continued failure to make the
arrangements necessary to file a brief. Thus, we hold that the cause can be considered
on the record and without briefs. Lott v. State, supra; Wade v. State, supra; Meza v. State,
supra.
An independent review of the record was undertaken for reversible error. Id. None
was found. Consequently, we affirm the judgment of the trial court.
Brian Quinn
Justice
Do not publish.
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