Hester, Christopher L. v. The State of Texas--Appeal from 179th District Court of Harris County

Affirmedand Memorandum Opinion filed January 27, 2005.

In The

Fourteenth Court of Appeals

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NO. 14-04-00006-CR

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CHRISTOPHER L. HESTER, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 179th District Court

Harris County, Texas

Trial Court Cause No. 958,759

M E M O R A N D U M O P I N I O N

Appellant entered a plea of guilty to the offense of aggravated assault, and a jury assessed punishment at confinement for five years in prison and a $5,000 fine.

Appellant was convicted on December 12, 2003 and filed notice of appeal on January 6, 2004. The reporter=s record was due in this court on February 10, 2004. No record was filed and the court reporter for the 179th District Court informed this court that appellant had not made arrangements to pay for the reporter=s record. After appellant failed to respond to various letters and an order from this court, on September 2, 2004, this court issued an order abating the appeal so that the trial court could hold a hearing to determine whether appellant is indigent and whether he desires to prosecute his appeal. During the hearing, appellant represented that he was going to pay the court reporter for the record within the week. The trial court filed a record of that hearing, which reflects that appellant is not indigent, is represented by retained counsel, and desires to prosecute his appeal. The trial court further determined that appellant would pay for the reporter=s record within one week and ordered appellant to file a brief by November 1, 2004. Neither the reporter=s record nor a brief has been filed.

On November 19, 2004, the State filed a motion to consider the appeal without briefs. Appellant filed no response. If the trial court has found that appellant 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). Because the trial court has already held one hearing to make the findings required under rule 38.8, and we can finding nothing in the rules or case law that requires this court to once again send this matter to the trial court, we decline to do so. Therefore, we grant the State=s motion and consider the appeal without a reporter=s record or briefs.

The clerk=s record reveals appellant filed a pretrial discovery order and a motion for a witness to be provided with street clothes. Both motions were granted. No post-judgment motions were filed. Absent briefs, no points of error are before us. Finding no fundamental error, we affirm the trial court=s judgment.

PER CURIAM

Judgment rendered and Memorandum Opinion filed January 27, 2005.

Panel consists of Justices Yates, Edelman and Guzman.

Do Not Publish C Tex. R. App. P. 47.2(b).