Order filed September 29, 2016




                                      In The

                     Fourteenth Court of Appeals
                                   ____________

                              NO. 14-16-00506-CR
                                   ____________

                  RANDY RANDALL RODGERS, Appellant

                                         V.

                       THE STATE OF TEXAS, Appellee


                    On Appeal from the 212th District Court
                           Galveston County, Texas
                       Trial Court Cause No. 14CR3525

                                     ORDER
      Appellant is not represented by counsel. The trial court has previously
determined that appellant is not indigent for purposes of appointment of counsel on
appeal. No brief has been filed. Rule 38.8 of the Texas Rules of Appellate Procedure
provides that we may 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. 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, “the 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, we ORDER appellant to file a brief in this appeal on or before
October 31, 2016. If appellant fails to file his brief 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); Coleman v. State, 774 S.W.2d
736, 738–39 (Tex. App.—Houston [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
“as justice may require” when a pro se appellant has not complied with the rules of
appellate procedure).



                                   PER CURIAM




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