Rohit Polavarapu v. State

In The
Court of Appeals
Seventh District of Texas at Amarillo
________________________
No. 07-19-00229-CR
________________________
ROHIT POLAVARAPU, APPELLANT
V.
THE STATE OF TEXAS, APPELLEE
On Appeal from County Criminal Court Number Nine
Tarrant County, Texas
Trial Court No. 1573689; Honorable Brent A. Carr, Presiding
February 12, 2020
MEMORANDUM OPINION
Before QUINN, C.J., and PIRTLE and PARKER, JJ.
Appellant, Rohit Polavarapu, appeals his conviction by a jury for driving while
intoxicated, a Class B misdemeanor.1 The trial court assessed his sentence at ninety
days confinement in the Tarrant County Jail; however, it suspended that sentence in favor
1 TEX. PENAL CODE ANN. § 49.04(a) (West Supp. 2019). Originally charged with driving while
intoxicated, a Class A misdemeanor, the jury found him guilty of the lesser-included offense of driving while
intoxicated, a Class B misdemeanor.
of community supervision for a term of eighteen months. This appeal followed.2 After
conducting a fundamental error review, we affirm.
BACKGROUND
Appellant was convicted on May 7, 2019, and gave timely notice of appeal through
his retained attorney of record. Appellant’s attorney subsequently withdrew from
representation and we abated this matter to the trial court to determine if Appellant was
indigent and entitled to the appointment of counsel.3 See Polavarapu v. State, No. 07-
19-00229-CR, 2019 Tex. App. LEXIS 6698, at *2 (Tex. App.—Amarillo Aug. 2, 2019,
order). On remand, the trial court determined that Appellant was not indigent and not
entitled to appointment of counsel.
The appeal was reinstated on our docket. The clerk’s record was subsequently
filed but the reporter’s record was not. By letter of August 30, 2019, we directed Appellant
to request preparation and make payment arrangements for the filing of the reporter’s
record by October 29, 2019. We further admonished Appellant that the failure to comply
by that date would result in the appeal being submitted to the court for consideration
without a reporter’s record pursuant to the provisions of Rule 37.3 of the Texas Rules of
Appellate Procedure. See TEX. R. APP. P. 37.3 (providing for consideration of issues that
do not require a reporter’s record in situations where the failure to file that record is due
to an appellant’s fault). Appellant did not comply with our order. Thus, by letter dated
2 Originally appealed to the Second Court of Appeals, this case was transferred to this Court by the
Texas Supreme Court pursuant to its docket equalization efforts. See TEX. GOV’T CODE ANN. § 73.001
(West 2013). We are unaware of any conflict between precedent of the Second Court of Appeals and that
of this Court on any relevant issue. See TEX. R. APP. P. 41.
3 As a basis for his motion to withdraw, counsel stated that Appellant had failed to pay for the
reporter’s record and a conflict of interest existed between them.
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November 1, 2019, we deemed the reporter’s record filed and set Appellant’s brief as
being due December 2, 2019. Id. at 38.6(a)(2). A reporter’s record was not filed and
Appellant did not favor us with a brief. On December 10, 2019, in an abundance of
caution and for the purpose of providing Appellant every reasonable opportunity to comply
with the orders of this court and cure his default, we entered an order sua sponte
extending the time to file his brief until January 13, 2020. Still, no reporter’s record or
brief has been filed.
ANALYSIS
While the Texas Rules of Appellate Procedure provide for the involuntary dismissal
of a civil case for want of prosecution or for the failure to comply with an order of the
appellate court, no such provision is available for the involuntary dismissal of an appeal
in a criminal case. See TEX. R. APP. P. 42.3 (providing for involuntary dismissal of a civil
appeal). See also TEX. R. APP. P. 42.4 (providing for involuntary dismissal of a criminal
appeal when the appellant has escaped custody but not otherwise). Article 44.33(b) of
the Texas Code of Criminal Procedure mandates that an “[a]ppellant’s failure to file his
brief in the time prescribed shall not authorize a dismissal of the appeal by the Court of
Appeals or the Court of Criminal Appeals, nor shall the Court of Appeals or the Court of
Criminal Appeals, for such reason, refuse to consider appellant’s case on appeal.” TEX.
CODE CRIM. PROC. ANN. art. 44.33(b) (West 2018). Therefore, an appellate court does
not have the authority to dismiss an appeal of a criminal conviction unless an appellant
either files a motion to dismiss the appeal or escapes from custody. See TEX. R. APP. P.
42.2 (providing for the voluntary dismissal of a criminal appeal).
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Where, as here, an appellant has not filed a brief in a criminal case, the provisions
of Rule 38.8(b) require the appellate court to remand the case to the trial court to conduct
a hearing and to make appropriate findings and recommendations. See TEX. R. APP. P.
38.8(b)(3). “However, where an appellant chooses to appear pro se and has been warned
of the dangers of pro se representation on appeal, there is no need to remand for a . . .
hearing.” Lott v. State, 874 S.W.2d 687, 688 n.2 (Tex. Crim. App. 1994). In this
proceeding, Appellant has been appropriately warned regarding the pitfalls of failing to
file a reporter’s record and an appellate brief. This matter has been remanded to the trial
court before and Appellant has been given ample opportunity to cure the defect and file
a brief. Where an appellant has failed to file a brief, Rule 38.8(b)(4) provides that an
“appellate court may consider the appeal without briefs, as justice may require.”
Because dismissal for want of prosecution is not an available option, when, as
here, an appellant has abandoned his appeal, an appellate court may submit the appeal
for consideration upon the record provided. See Sutherland v. State, 658 S.W.2d 169,
170 (Tex. Crim. App. 1983) (no appellate brief filed); Burton v. State, 267 S.W.3d 101,
103 (Tex. App.—Corpus Christi 2008, no pet.) (no appellate brief filed). See also Bruner
v. State, No. 05-19-00356-CR, 2019 Tex. App. LEXIS 8569, at *4-5 (Tex. App.—Dallas
2019 Sept. 23, 2019, no pet.) (mem. op., not designated for publication) (no reporter’s
record or brief filed); Turner v. State, No. 05-10-00182-CR, 2011 Tex. App. LEXIS 1061,
at *1 (Tex. App.—Dallas Feb. 16, 2011, no pet.) (mem. op., not designated for publication)
(no reporter’s record or brief filed). In such situations, an appellate court reviews the
record provided for “fundamental error.” Burton, 267 S.W.3d at 103.
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There are three recognized categories of fundamental error: (1) errors recognized
by the Legislature as fundamental; (2) the violation of rights which are “waivable only”;
and (3) the denial of absolute, systemic requirements. Saldano v. State, 70 S.W.3d 873,
887-88 (Tex. Crim. App. 2002); Burton, 267 S.W.3d at 103. In Saldano, the Court of
Criminal Appeals enumerated the following “fundamental errors”: (1) denial of the right
to counsel; (2) denial of the right to a jury trial; (3) denial of appointed counsel’s right to
ten days to prepare for trial; (4) absence of jurisdiction over the defendant; (5) absence
of subject-matter jurisdiction; (6) prosecution under a penal statute that does not comply
with the Separation of Powers Section of the Texas Constitution; (7) jury charge errors
resulting in egregious harm; (8) prosecution at a location other than the county seat; (9)
prosecution under an ex post facto law; and (10) comments by a trial judge which taint
the presumption of innocence.
CONCLUSION
Bearing in mind these potential errors, without the benefit of either a reporter’s
record or an appellate brief, we have thoroughly examined the record provided and find
no fundamental error. Accordingly, the trial court’s judgment is affirmed.
Patrick A. Pirtle
Justice
Do not publish.
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