Jarvis L. Barber v. State

Order filed July 19, 2018
In The
Fourteenth Court of Appeals
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NO. 14-15-00806-CR
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JARVIS L. BARBER, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from County Criminal Court at Law No. 7
Harris County, Texas
Trial Court Cause No. 2008621
ABATEMENT ORDER
Appellant is represented by retained counsel, Frederick Wilson. After Wilson
did not file a brief for appellant, we abated this appeal and directed the trial court
held a hearing pursuant to Texas Rule of Appellate Procedure 38.8(b). The trial court
held the hearing on January 5, 2017, and found: (1) appellant desired to continue to
prosecute his appeal; (2) appellant had not abandoned his appeal; and (3) appellant
was not indigent.
Because Wilson still had not filed a brief, the trial court held a second hearing
on June 5, 2018, and made the same findings. Wilson stated he would file the brief
by July 6, 2018. We reinstated the case and gave him until July 13, 2018, to file the
brief. Neither the brief nor a motion for extension of time to file the brief has been
filed.
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. Tex. R. App. P. 38.8. 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, “the appellate court may consider the appeal
without briefs, as justice may require.” Tex. R. App. P. 38.8 (b)(4).
Though Rule 38.8 appears to require only one hearing, two hearings have been
held on our order, and the trial court has made the findings required under Rule 38.8.
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, and we decline to do so.
Therefore, we ORDER that appellant’s brief be filed by August 3, 2018. No
further extensions will be granted absent extraordinary circumstances.
If the brief is not filed 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).
PER CURIAM
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RULE 38. REQUISITES OF BRIEFS
Tex. R. App. P. 38.8. Failure of Appellant to File Brief.
(b) Criminal Cases.
(1) Effect. An appellant’s failure to timely file a brief does not
authorize either dismissal of the appeal or, except as provided in (4), consideration
of the appeal without briefs.
(2) Notice. If the appellant’s brief is not timely filed, the appellate clerk
must notify counsel for the parties and the trial court of that fact. If the appellate
court does not receive a satisfactory response within ten days, the court must order
the trial court to immediately conduct a hearing to determine whether the appellant
desires to prosecute his appeal, whether the appellant is indigent, or, if not indigent,
whether retained counsel has abandoned the appeal, and to make appropriate
findings and recommendations.
(3) Hearing. In accordance with (2), the trial court must conduct any
necessary hearings, make appropriate findings and recommendations, and have a
record of the proceedings prepared, which record—including any order and
findings—must be sent to the appellate court.
(4) Appellate Court Action. Based on the trial court’s record, the
appellate court may act appropriately to ensure that the appellant’s rights are
protected, including initiating contempt proceedings against appellant’s counsel. If
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, the appellate court may consider the appeal without briefs, as justice
may require.
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