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Court of Appeals of Texas, First District, HoustonJan 13, 2005
No. 01-04-00476-CR (Tex. App. Jan. 13, 2005)

No. 01-04-00476-CR

Opinion issued January 13, 2005. DO NOT PUBLISH. Tex.R.App.P. 47.2(b).

On Appeal from County Criminal Court at Law No. 12, Harris County, Texas, Trial Court Cause No. 1219991.

Panel consists of Justices NUCHIA, HANKS, and HIGLEY.


Appellant, Cheryl Ann Fultz, pleaded guilty to the misdemeanor offense of driving while intoxicated with a plea bargain agreement of jail confinement for 180 days, suspended, and placement on community supervision for one year. The trial court sentenced appellant in accordance with the agreement and gave its permission for an appeal. See TEX. R. APP. P. 25.2(a)(2). Appellant filed timely notice of appeal. On October 7, 2004, appellant's retained counsel, Victor Blaine, filed a motion to withdraw as counsel, having concluded the appeal was meritless. We granted the motion on October 21, 2004. See McCoy v. Court of Appeals of Wisconsin, Dist. 1, 486 U.S. 429, 108 S. Ct. 1895 (1988). We further notified appellant in our October 21, 2004 order, as follows:

We notify appellant at her last known address, as provided in counsel's motion, that her brief is due in this Court no later than November 20, 2004. Unless appellant retains counsel who files a brief on or before November 20, 2004, or unless by that date a motion for extension of time to file the brief is filed in this Court and granted, this appeal will be set for submission and considered by the Court without briefs on the record alone.
We received no response to our October 21, 2004 order. Therefore, on December 8, 2004, we set the appeal for submission on December 29, 2004 and notified the parties, as required by the Rules of Appellate Procedure. See TEX. R. APP. P. 39.9. Again, we received no response. Accordingly, we consider the appeal without briefs. We have reviewed the record for fundamental error and find none. See Ashcraft v. State, 802 S.W.2d 905, 906 (Tex.App.-Fort Worth 1991, no pet.); Meza v. State, 742 S.W.2d 708, 708-09 (Tex.App.-Corpus Christi 1987, no pet.). We affirm the judgment of the trial court.

Rule 38.8(b)(4) of the Texas Rules of Appellate Procedure provides that an appellate court may consider an appeal in a criminal case without briefs if the trial court has found that the appellant no longer desires to prosecute the appeal, or that the appellant is not indigent but has not made the necessary arrangements for filing a brief, as justice may require. TEX. R. APP. P. 38.8(b)(4). The rules also provide that an appellate court may suspend a rule's operation in a particular case and order a different procedure to expedite a decision or for other good cause. See TEX. R. APP. P. 2. The trial court made no 38.8(b)(4) findings in this appeal. However, we hold that good cause exists to suspend the requirements of Rule 38.8(b)(4) in this case because: (1) appellant's retained counsel concluded that the appeal was frivolous and withdrew from representation, (2) after we gave appellant an opportunity to retain other counsel, appellant did not communicate with the Court either through counsel or pro se, and (3) abatement to the trial court for Rule 38.8(b)(4) findings would be a waste of judicial resources in this case.