Oliver v. State

891 S.W.2d 651 (1995)

William Robert OLIVER, Appellant, v. The STATE of Texas, Appellee.

No. 0991-94.

Court of Criminal Appeals of Texas, En Banc.

January 25, 1995.

*652 Kenneth W. Smith (Court-appointed, on appeal), Houston, for appellant.

John B. Holmes, Jr., Dist. Atty., and Ernest Davila, Asst. Dist. Atty., Houston, Robert Huttash, State's Atty., Austin, for State.

Before the court en banc.

MANSFIELD, Judge.

Appellant was convicted by a jury of possession of methamphetamine less than 28 grams. The trial court found the enhancement allegations to be true and assessed punishment at confinement for ten years. The conviction was originally affirmed by the Court of Appeals. Oliver v. State, 813 S.W.2d 762 (Tex.App.Houston [1st], 1991) We reversed that decision and remanded for reconsideration in light of Green v. State, 872 S.W.2d 717 (Tex.Cr.App.1994). The Court of Appeals again affirmed. Oliver v. State, 881 S.W.2d 87 (Tex.App.Houston [1st] 1994). Appellant once again brings a petition for discretionary review. We will again grant the petition and, once again, remand to the Court of Appeals.

In his sole ground for review Appellant complains that he was not given the opportunity to rebrief and present arguments to the Court of Appeals. He states that no notice was sent informing him of such right and no enquiry was made by the Court of Appeals as to why no such brief had been filed. Tex. R.App.Pro. 74(l)(2). The record supports Appellant's contention.

This Court has held that the return of the record to the appellate court is equivalent to the filing of the transcript and statement of facts, giving counsel thirty days in which to file a brief in Appellant's behalf. Theus v. State, 863 S.W.2d 489 (Tex.Cr.App.1993). When no brief is timely filed a court of appeals must make enquiries as to why such omission has occurred. Tex.R.App.Pro. 74(l)(2).

Therefore, Appellant's ground for review is summarily granted. The judgment of the Court of Appeals is vacated and the case remanded once again to that court in order that Appellant may file a brief after remand.