






Phillip Parker v. State of Texas















IN THE
TENTH COURT OF APPEALS
 

No. 10-00-149-CR

     PHILLIP PARKER,
                                                                              Appellant
     v.

     THE STATE OF TEXAS,
                                                                              Appellee
 

From the County Criminal Court No. 11
Dallas County, Texas
Trial Court # MA99-70612-N
                                                                                                                

MEMORANDUM OPINION
                                                                                                                

      A jury convicted Phillip Parker of assault.  The trial court placed Parker on community
supervision for two years.  Parker timely-filed his notice of appeal.
      The Clerk’s Record was filed in a timely fashion, but no Reporter’s Record was filed because
Parker failed to make arrangements to pay for the record.  After repeated notices that his brief was
past due, we abated this cause to the trial court for a hearing to determine why no brief had been
filed on Parker’s behalf, whether Parker desired to proceed with the appeal, and whether Parker
is indigent.  At the abatement hearing, Parker and his counsel suggested that the appeal had been
delayed because Parker, although not indigent, felt that the cost of the reporter’s record should be
reduced.  He suggested that it “seems a bit high.”  The court explained to Parker that the court
reporter was charging a standard fee and he agreed to pay the fee.  
      The court notified Parker and his counsel that the brief would be due in this Court thirty days
after the abatement hearing.  Counsel stated that he would continue to represent Parker in the
appeal.  
      The reporter’s record was paid for and filed, and on April 18 we notified counsel that Parker’s
brief was once again past due.  We requested that he prepare and file a brief within ten days.  We
also notified counsel that the failure to file a brief or other satisfactory response would result in
another abatement of this cause for a hearing to assure that Parker is receiving effective assistance
of counsel.  See Tex. R. App. P. 38.8(b)(2); In re Prentice, 848 S.W.2d 717 (Tex. App.—Corpus
Christi 1993, orig. proceeding).  When counsel did not respond to that letter, we again abated the
appeal.
      On July 5, 2001, the trial court held a second hearing.  Parker’s counsel appeared at the
hearing, but Parker did not.  After hearing the argument of Parker’s counsel, the trial court found
that:
1.  Parker is, himself, a practicing attorney with approximately ten years of experience;  
2.  His trial counsel gave notice of appeal to protect Parker’s rights but was not retained
to pursue the appeal;
3.  Parker paid for the reporter’s record and personally took possession of the record in
December of 2000;
4.  Although Parker maintains an office in Dallas, Texas, his trial counsel has been
unsuccessful in his numerous attempts to communicate with Parker;
      5.  Parker is not indigent;
      6.  Parker has abandoned his appeal.

      Because Parker is not indigent and counsel is retained rather than appointed, counsel could
have filed a motion to withdraw.  See Tex. R. App. P. 6.5; cf. Enriquez v. State, 999 S.W.2d 906,
908 (Tex. App.—Waco 1999, no pet.) (only trial court can permit appointed counsel to withdraw). 
Because the record has been filed and counsel has appeared on behalf of Parker, we would
normally require counsel to file a brief.  But, if an appellant abandons the appeal, we cannot
compel counsel, appointed or retained, to file a brief on behalf of the appellant.  See Tex. R. App.
P. 38.8(b)(4).  Accordingly, we are considering this appeal without briefs.  Id. (the appellate court
may consider the appeal without briefs, as justice may require); Wilson v. State, 39 S.W.3d 390,
391 (Tex. App.—Waco 2001, no pet.) (citing Ricketts v. State, 39 S.W.3d 391, 392 (Tex.
App.—Waco 2001, no pet.)).
      We agree with the trial court that Parker’s failure to provide a brief after obtaining a copy of
the record over a year ago constitutes abandonment of the appeal.  Parker is not indigent and has
failed to make arrangements for filing a brief.  We have carefully reviewed the record before us
and find nothing that requires reversal of this cause.  See Tex. R. App. P. 38.8(b)(4).
      The judgment is affirmed.
 
                                                                         PER CURIAM
Before Chief Justice Davis,
      Justice Vance, and
      Justice Gray
Affirmed
Opinion delivered and filed January 23, 2002
Publish
[CR25]
