Kendrick, William T. v. Texas, the State Of

•> 1 5 i tf Glourt of Appeals W\fty Ststrtrt of Qkxas at Dallas JUDGMENT WILLIAM T. KENDRICK, Appellant Appeal from the 203rd District Court of Dallas County, Texas. (Tr.Ct.No. F91- No. 05-92-01847-CR V. 23381-RP). Opinion delivered per curiam, before THE STATE OF TEXAS, Appellee Justices Lagarde, Kinkeade, and Maloney. Based on the Court's opinion of this date, we AFFIRM the trial court's judgment. Judgment entered December 23, 1996. ^ ZtZ^rz** JZ*M$M£t£L& FRANCES MALONEY JUSTICE ? AFFIRM and Opinion Filed December 20, 1996 In The (Uourt of Appeals JTtf tt| Btstrtrt of (Eexas at lallas No. 05-92-01847-CR WILLIAM T. KENDRICK, Appellant V. THE STATE OF TEXAS, Appellee On Appeal from the 203rd District Court Dallas County, Texas Trial Court Cause No. F91-23381-RP OPINION PER CURIAM Before Justices Lagarde, Kinkeade, and Maloney The trial court convicted William T. Kendrick of felony driving while intoxicated and assessed a five year sentence and a fine of $2,000.: Appellant timely appealed his conviction. However, this appeal is before us without appellant's brief. For the following reasons, we affirm the trial court's judgment. On September 8, 1994, this Court ordered the trial court to conduct a hearing to Appellant pleaded nolo contendere without the benefit of a plea bargain. determine why appellant had not filed his brief. See Tex. R. App. P. 74(/)(2). The trial court found that appellant wanted to prosecute his appeal, appellant was not indigent, and that retained counsel had not abandoned the appeal. The record from this hearing shows that appellant had not filed his brief because the statement of facts had never been filed with this Court. On November 2, 1994, this Court adopted the trial court's findings and ordered appellant to file the statement of facts by November 22, 1994 and a brief by December 2, 1994. On December 9, 1994, appellant filed the statement of facts with this Court. On December 12, 1994, we ordered appellant to file his brief by January 11, 1995. Again, appellant did not file a brief. On November 6, 1996, we ordered appellant to file his brief by December 6, 1996. As of the date of this opinion, appellant has not filed a brief. The Texas Rules of Appellate Procedure provide that we should not dismiss nor consider a criminal appeal without briefs unless appellant (1) no longer desires to prosecute the appeal, or (2) is not indigent and has failed to make the necessary arrangements for filing a brief. See Tex. R. App. P. 74(/)(2). This rule protects an indigent appellant from appointed counsel's failure to provide a brief. Coleman v. State, 11A S.W.2d 736, 738 (Tex. App.-Houston [14th Dist.] 1989, no pet.). The Coleman court opined that no accused should be denied his right of appeal; however, justice requires that an appellant exercise his appellate rights within the rules of appellate procedure. Coleman, 11A S.W.2d at 738-39. The Coleman court also concluded that requiring any appellant to follow the rules does not -2- improperly infringe on his right of appeal. Id. Here, the trial court sentenced appellant on July 30, 1992. He filed his notice of appeal that same day. We ordered the trial court to conduct a hearing to determine why appellant did not file his brief. The trial court found that appellant wished to prosecute his appeal and his retained attorney had not abandoned appellant's appeal. Rather, the attorney was waiting for the statement of facts to be filed in this Court. That statement of facts was filed over two years ago. Appellant has not filed a brief since the statement of facts was filed in this Court. Instead, appellant has ignored our communications concerning the filing of his brief. Therefore, we conclude that the interests of justice require that this appeal be submitted without briefs upon the record before us. See Lott v. State, 874 S.W.2d 687, 688 (Tex. Crim. App. 1994). Because no brief has been filed, no contentions of error are properly before us for review. In the interest of justice, we have reviewed the entire record. Our examination of the record does not disclose any fundamental error. We affirm the trial court's judgment. PER CURIAM Do Not Publish Tex. R. App. P. 90 921847F.U05 -3-