Opinion issued December 7, 2017




                                     In The

                             Court of Appeals
                                    For The

                         First District of Texas
                           ————————————
                             NO. 01-16-00817-CR
                           ———————————
                WILLIAM EDWARD SIMMONS, Appellant
                                       V.

                      THE STATE OF TEXAS, Appellee


           On Appeal from County Criminal Court at Law No. 10
                          Harris County, Texas
                      Trial Court Case No. 2058196


                         MEMORANDUM OPINION

      A jury found appellant, William Edward Simmons, guilty of misdemeanor

driving while intoxicated, second offense.1 After appellant pleaded true to the




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      See TEX. PENAL CODE ANN. §§ 49.04, 49.09 (West Supp. 2016).
allegation in an enhancement paragraph, the trial court assessed his punishment at

one year of confinement and a fine of $500.00, suspended the sentence of

confinement, and placed him on community supervision for 18 months.

      On October 7, 2016, appellant’s retained trial counsel filed a notice of appeal

on his behalf, and the trial court permitted counsel to withdraw. The trial court found

that appellant was not indigent and would retain counsel for appeal. However, no

new counsel for appellant has since made an appearance in this appeal.

      After the clerk’s record was filed, this Court notified appellant that the trial

court reporter had informed the Court that appellant had not paid, or made

arrangements to pay, for the reporter’s record and unless appellant caused the

reporter’s record to be filed, or provided proof that he was entitled to proceed without

payment of costs, the Court would consider the appeal without a reporter’s record.

See TEX. R. APP. P. 37.3(c). After appellant did not respond, the Court ordered that

the appeal would be submitted for a decision without a reporter’s record and ordered

that appellant file a brief no later than April 27, 2017. See TEX. R. APP. P. 38.6(a),

37.3(c). After appellant again did not respond, the Court notified appellant that a

brief had not been filed and, unless he filed a brief within ten days, a hearing would

be required. See TEX. R. APP. P. 38.8(b)(2), (3).

      An appellant’s failure to timely file a brief does not authorize dismissal of the

appeal. TEX. R. APP. P. 38.8(b)(1). If an appellant’s brief is not timely filed, the

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appellate the court must order the trial court to immediately conduct a hearing to

determine whether the appellant desires to prosecute his appeal, whether he is

indigent, or, if not, whether retained counsel has abandoned the appeal. TEX. R. APP.

P. 38.8(b)(2), (3). If the trial court finds that an appellant no longer desires to

prosecute his appeal, or that he 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. TEX. R. APP. P. 38.8(b)(4).

      On July 18, 2017, no brief having been filed, the Court abated the appeal and

remanded the case to the trial court for a determination of whether appellant desired

to prosecute his appeal and, if so, whether he is indigent and should have counsel

appointed. See id. The record of the abatement hearing shows that the trial court

stated that, despite its attempts to notify him of the hearing, appellant did not appear.

The trial court further stated that it was unable to make findings as to whether

appellant wished to continue his appeal or whether he is indigent and entitled to

appointed counsel. On September 12, 2017, this Court reinstated the appeal and

ordered that the appeal be considered without briefs, in the interest of justice. See

id. Appellant did not respond.

      Although the trial court did not specifically find that appellant no longer

desires to prosecute his appeal, this Court, and others, have declined to re-abate and

remand for such finding, and have instead considered the appeal without briefs,

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when, as here, the appellant has not prosecuted his appeal and the trial court has

found that he, despite notice, failed to appear at a hearing to determine whether he

desired to continue his appeal. See Garcia v. State, 01-14-00939-CR, 2016 WL

3269931, at *1–2 (Tex. App.—Houston [1st Dist.] June 14, 2016, no pet.) (mem.

op., not designated for publication) (declining to re-abate, holding that appellant no

longer desired to prosecute appeal, and considering appeal without briefs); Gonzalez

v. State, No. 01–05–01155–CR, 2007 WL 3227686, at *1 (Tex. App.—Houston [1st

Dist.] Nov. 1, 2007, no pet.) (mem. op., not designated for publication) (declining to

re-abate, holding that, because appellant had done nothing to prosecute appeal and

had not kept this Court or the trial court informed of his whereabouts, he no longer

desired to prosecute appeal, and considering appeal without briefs); House v. State,

No. 01-00-01316-CR, 2002 WL 221619, at *1 (Tex. App.—Houston [1st Dist.] Feb.

14, 2002, no pet.) (not designated for publication) (holding that, because appellant

had not kept this Court or his retained counsel informed of his whereabouts, he no

longer desired to prosecute appeal, that further abatement was futile, and considering

appeal without briefs); Gilder v. State, No. 01-97-01251, 2000 WL 1835308, at *1

(Tex. App.—Houston [1st Dist.] Dec. 14, 2000, no pet.) (not designated for

publication) (holding that, although trial court did not make specific finding that

appellant no longer wished to prosecute her appeal, “good cause” existed to suspend

requirement of Rule 38.8(b)(4) that trial court make such finding, and, because “[n]o

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issue of indigency has been raised” and appellant had not made the necessary

arrangements for filing a brief, considering appeal without briefs); see also

Alexander v. State, No. 04-15-00545-CR, 2016 WL 805494, at *1 (Tex. App.—San

Antonio Mar. 2, 2016, no pet.) (mem. op., not designated for publication) (“[W]e

construe appellant’s failure to respond to the trial court’s email and failure to appear

at the hearing, along with appellant’s failure to file a brief, as an indication that

appellant no longer desires to pursue his appeal.”); Whittman v. State, No. 03-08-

00254-CR, 2009 WL 884796, at *1 (Tex. App.—Austin Apr. 2, 2009, no pet.) (mem.

op., not designated for publication) (holding that, although it “ordinarily would

require the trial court to hold a hearing to determine whether the appellant wishes to

prosecute this appeal,” appellant, based on his “failure to pay for the record, file a

brief, or apprise us of his address,” no longer wished to prosecute appeal, and

considering appeal without briefs).

      Appellant has not, since filing his notice of appeal and clerk’s record over a

year ago, filed anything in the appeal and has not responded to any of this Court’s

notices, which were sent to his last known address—the same address on file with

the district clerk—and have not been returned as undelivered. We also note that the

record shows that the terms of appellant’s community supervision require him to

keep his community supervision officer, and, in some circumstances, the trial court,

informed of any address changes. We hold that good cause exists to suspend the

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requirement that the trial court find that appellant no longer desires to prosecute his

appeal and consider the appeal without briefs. See TEX. R. APP. P. 2, 38.8(b)(4);

Garcia, 2016 WL 3269931, at *1–2.

      When we determine an appeal in a criminal case without the benefit of an

appellant’s brief, our review of the record is limited to fundamental error. See Lott

v. State, 874 S.W.2d 687, 688 (Tex. Crim. App. 1994); Gilder, 2000 WL 1835308,

at *1; see also Saldano v. State, 70 S.W.3d 873, 887–88 (Tex. Crim. App. 2002).

Here, our examination of the trial court record reveals no fundamental error.

      Accordingly, we affirm the judgment of the trial court.




                                               Sherry Radack
                                               Chief Justice

Panel consists of Chief Justice Radack and Justices Higley and Bland.

Do not publish. TEX. R. APP. P. 47.2(b).




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