Billy Joe Perkins v. The State of Texas--Appeal from 220th District Court of Hamilton County

IN THE

TENTH COURT OF APPEALS

No. 10-96-199-CR

BILLY JOE PERKINS,

Appellant

v.

THE STATE OF TEXAS,

Appellee

From the 220th District Court

Hamilton County, Texas

Trial Court # 6779

O P I N I O N

On August 6, 1996, a jury found Billy Perkins guilty of indecency with a child and assessed punishment at ten years' incarceration and a $10,000 fine. See Tex. Penal Code Ann. 21.11 (Vernon 1994). The term of incarceration and one-half of the fine were probated for ten years. Perkins filed a notice of appeal on September 5. Although Perkins was represented by counsel at trial, he is proceeding pro se on appeal.

The transcript was filed on November 20; however, no statement of facts followed. Consequently, on November 27 our clerk notified Perkins that the statement of facts had not been timely filed and that, absent a motion for an extension of time to file the statement of facts, we would consider the appeal on the transcript alone. See Tex. R. App. P. 53(m). In the same letter, Perkins was given thirty days to file the brief. Perkins filed neither the statement of facts nor an appellate brief within those thirty days.

On January 8, 1997, we sent notice to Perkins that his brief was overdue and requested that he file his brief within ten days. Neither the statement of facts nor a brief was received within the time period provided. Accordingly, on January 23 we sent a warning to Perkins pursuant to Tex. R. App. P. 74(l) that we may dismiss his appeal for want of prosecution unless he responded within ten days and demonstrated grounds for continuing the appeal. Again, ten days passed and no correspondence was received from Perkins.

Tex. R. App. P. 74(l)(2) provides that in the event a brief is not filed on behalf of the appellant within the time prescribed, the appellate court shall remand the cause to the trial court to determine whether counsel has been negligent in filing an appeal, whether the appellant desires to prosecute his appeal, or whether substitute counsel must be appointed if an indigent appellant desires to prosecute his appeal. Lott v. State, 874 S.W.2d 687, 688 n.2 (Tex. Crim. App. 1994). However, when a non-indigent appellant chooses to appear pro se on appeal, there is no need to remand for a Rule 74(l)(2) hearing. See Tex. R. App. P. 74(l)(2) ("If the trial judge finds that the appellant . . . is not indigent but has failed to make necessary arrangements for filing a brief, the appellate court may consider the appeal without briefs, as justice may require."); see also Lott, 874 S.W.2d at 688 n.2 (citing Coleman v. State, 774 S.W.2d 736 (Tex. App. Houston [14th Dist.] 1989, no pet.)).

The trial court at a hearing held on October 15, 1996, found that Perkins was not indigent and that he could afford to hire his own counsel on appeal. Perkins has nevertheless chosen to proceed pro se. Since the transcript was filed in this court on November 20, 1996, Perkins, despite repeated attempts by this court to persuade him to communicate with us, has completely ignored our requests that he file a statement of facts and a brief. Therefore, we will consider Perkins' appeal without the benefit of either a statement of facts or an appellant's brief.

We have reviewed the entire record before us, and having found no unassigned fundamental error, we affirm the judgment of the trial court. See Lott, 874 S.W.2d at 688.

The judgment is affirmed.

PER CURIAM

Before Chief Justice Davis,

Justice Cummings, and

Justice Vance

Affirmed

Opinion delivered and filed February 12, 1997

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