Jenkins, Brian Erwin v. The State of Texas--Appeal from 338th District Court of Harris County

Affirmedand Memorandum Opinion filed January 27, 2005.

In The

Fourteenth Court of Appeals

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NO. 14-04-00312-CR

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BRIAN ERWIN JENKINS, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 338th District Court

Harris County, Texas

Trial Court Cause No. 913,763

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

Appellant was convicted by a jury of the offense of possession of less than one gram of cocaine. The jury assessed punishment at 450 days in a state jail facility. We affirm.

Appellant was charged on June 1, 2002 with possession of cocaine. On July 9, 2002, the trial court appointed an attorney to represent appellant. On January 29, 2004, the trial court held a hearing on appellant=s motion to represent himself. Despite the trial court=s warnings of the dangers and disadvantages of self-representation, appellant decided to proceed pro se. On March 26, 2004 a jury found appellant guilty and assessed his punishment. Appellant filed a pro se notice of appeal.

On June 3, 2004, this court abated appellant=s appeal for determination of whether appellant was indigent and desired to prosecute his appeal. The trial court held a hearing and found appellant was indigent and entitled to a free record on appeal. The trial court again warned appellant of the disadvantages of self-representation, but appellant chose to represent himself on appeal. The record was filed in this court August 19, 2004. Appellant=s brief was due September 20, 2004. No brief has been filed.

Rule 38.8 provides that we will 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. 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, Athe 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 find nothing in the rules or case law that requires this court to once again send this matter back to the trial court, we decline to do so. Therefore, on November 12, 2004, we ordered appellant to file a brief in this appeal on or before December 13, 2004. In our order, we advised appellant that if he failed to file his brief, we would 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, 738B39 (Tex. App.CHouston [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 Aas justice may require@ when a pro se appellant has not complied with the rules of appellate procedure). Appellant has not complied with our order of November 12, 2004.

Although no accused should be denied his right of appeal, justice requires the exercise of this right of appeal must be held within the framework of the rules of appellate procedure. See Coleman, 774 S.W.2d at 738B39. Requiring appellant to follow the rules does not infringe upon his rights of appeal. See id. We therefore find that justice requires this appeal be determined without a brief.

The record reflects that at approximately 1:30 a.m. on June 1, 2002, Officer K. L. Thornton of the Harris County Sheriff=s Department observed a vehicle speeding. Officer Thornton moved behind the vehicle to conduct a stop and turned on his emergency lights and siren. At that time the car increased its speed. The driver of the car, later identified as appellant, threw a bag containing a white, powdery, substance out of the vehicle. The driver also threw three or four vials out of the car. Officer Thornton testified that, in his experience, those type of vials were used to carry PCP. After a two mile chase, appellant stopped his vehicle and Officer Thornton arrested him for evading detention. Some of the white powdery substance appellant threw out of the window adhered to his car. The substance field-tested positive for cocaine. Officer Dansby of the Harris County Sheriff=s Office recovered the plastic bag, which also tested positive for cocaine. Officer Dansby also found a bottle of Xanax, a prescription medication, for which appellant did not have a prescription.

At trial, appellant cross-examined the State=s witnesses and presented evidence in his defense. Appellant made no objections to the jury charge. Appellant was permitted to make a closing argument in which he contended he had a AGod-given@ right to travel and Officer Thornton was not justified in stopping him for speeding. The jury found appellant guilty of possession of cocaine.

At the punishment stage of trial, the State introduced evidence of prior convictions for possession of marijuana, assault, and discharging a firearm in a metropolitan area. Appellant testified and asked the jury for leniency. On cross-examination, appellant denied throwing the cocaine out of his car window. Appellant presented his girlfriend, who testified that he has the reputation for helping others. The jury assessed punishment at 450 days in a state jail.

Having reviewed the entire record brought forth in this appeal, we find no reversible error. Accordingly, the judgment of the trial court is affirmed.

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).