IN THE COURT OF CRIMINAL APPEALS
OF TEXAS
v.
THE STATE OF TEXAS
FROM THE SIXTH COURT OF APPEALS
WALKER COUNTY
D I S S E N T I N G O P I N I O N
Appellant has expended enormous energy and many hours of time in activity the sole purpose of which appears to be to disrupt appellate review and annoy the court of appeals. While I have great empathy with and sympathy for the court of appeals, I do not agree with its resolution of the problem. In spite of appellant's deliberate, even malicious, abuse of the system, I believe that he is correct in asserting that Tex. Code Crim. Proc., art. 44.33(b) limits the ability of the court of appeals to dismiss his appeal for want of prosecution.
The result of appellant's antics is that he has failed to file a brief. This appears to be the real reason for the dismissal of appellant's appeal; the court of appeals is exasperated and tired of wrangling with appellant over when his brief will be filed. The court of appeals has gone far beyond that which should be expected of it in the exercise of patience and forbearance in the face of appellant's dilatory exploits. However, the court of appeals had the power to cut short appellant's antics long before it did, and it probably should have done so.
The court of appeals is barred by our code of criminal procedure from dismissing an appeal because of failure to file a brief. However, if an appellant does not file a brief after being afforded a reasonable opportunity to do so, the court of appeals has the authority to decide the case without appellant's assistance; it may review the record for fundamental error on its own motion and rule on the basis of that internal review. It is true that the rule says "may consider," not "must consider," but the charge given to our courts includes providing a day in court for all those who claim to be aggrieved, even the most undeserving. Appellant is entitled to be heard on his appeal, no matter how repugnant his actions in regard to the judicial system. Regardless of the provocation, judges are charged with following only the law-remaining above the fray, so to speak.
I recognize that unassigned fundamental error is rare, but without a review of the record we cannot say with assurance that appellant does not have a legitimate complaint. I would remand to the court of appeals with instructions to review the record for fundamental error and rule accordingly. I respectfully dissent.
Johnson, J.
En banc
Filed: October 13, 2004
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