### IN THE TENTH COURT OF APPEALS

No. 10

- 21

- 00188

- CR

JETMIR NOKSHIQI , Appellant

v.

THE STATE OF TEXAS , Appellee

From the County Court at Law No . 2 McLennan County, Texas Trial Court No. 2018

- 2684

- CR2

OPINION

Appellant Jetmir Nokshiqi was convicted by a jury of misdemeanor assault , and

the trial court granted Nokshiqi ’ s request for community supe rvision. Nokshiqi was
represented by retained c o unsel at trial , but filed this appeal pro se

. By letter dated October 20, 2021, t he court reporter notified this Court that
Nokshiqi had not made a rrangements for the reporter ’ s record. We abated the case to

the trial court to conduct a hea ring to det e rmine whether Nokshiqi wished to contin u e
the appeal and, if so, whether he was entitled to appointed counsel. We requested thatNokshiqi v. State Page 2 the trial court also inform Nokshiqi that he would be required to make arrangements

for the reporter ’ s record if h e elect ed t o continue his appeal pro se

. After a hearing, at which Nokshiqi appeared, the trial court made the following
findings of fact:

1. The Defendant confirmed that

a. J ason Darling had declined representation on appeal in this matter, although he assiste d th e Defendant in drafting notice of appeal;

b

. Jason Darling has previously provided the Defendant with the names of various attorneys in this area who are experienced in criminal appellate matters;

c. He has contacted the office of Alan Bennett, a loca l a t t orney with exp erience in criminal appeals and intends to retain Mr. Bennett this week;

2. The Defendant is self

- employed and receives income in the form of a draw from the net income of his businesses in an amount which clearly establishes tha t he is no t indigent;

3. Th e Defendant refuses to waive his right to counsel;

4. The Defendant understands the imminent nature of the deadlines established by the Court of Appeals;

5. The Defendant acknowledges receipt from the official court reporter i n Augus t, 2 0 21, of an estimate of $2,500.00 for the cost of a record of proceedings at the trial Court level;

6. The Defendant acknowledges and understands his responsibility to request, pay for and provide a record of the trial proceedings within the tim e perio ds e s tablished by the Court of Appeals in order for his appeal to proceed;

7. The Defendant acknowledges that, if he does not retain counsel on appeal immediately, the Court of Appeals may proceed under theNokshiqi v. State Page 3 expectation that the Defendant is electin g to wa ive c ounsel and continue pro se

.

The trial court made the following conclusions of law:

1. T he Defendant is not indigent according to law and the standards established by the County Court at Law No. Two of McLennan County, Texas;

2. The Defendant does not w i s h to apply for court

- appointed counsel on appeal, but chooses to retain counsel;

3. The D efendant does not wish to waive counsel on appeal;

4. T he Defendant has been made aware of the consequences of his decisions in this matter and of any fu rther de la y s by the Defendant in retaining legal counsel and meeting all deadlines;

5. The Defendant's decisions herein have been made voluntarily and with a full understanding of the potential results of any delay on his part.

The appeal was then rein s tated , a nd w e ordered Nokshiqi on January 19 , 2022 to
make arrangements to have the court reporter ’ s record file d within thirty days

. In the

same order, we notified Nokshiqi that his appellate brief was due within thirty days

afte r the court reporter ’ s re cord was f i l ed

. Despite being admonished by the t rial court at the abatement hearing that time
was of the essence in retaining appellate counsel, Nokshiqi has not infor med us that he

has retained an attorney for this appeal nor has any attorney made an a p pearance o n

his behalf.
By letter da ted February 18, 2022, t he court reporter again notified us that

Nokshiqi had not made a rrangements for the reporter ’ s r ecord. We d irected Nokshiqi
in a letter dated February 28, 2022 to immediate ly r equest the court r eporter to p repareNokshiqi v. State Page 4 the record an d t o notify us of his request within twenty

- one days . Nokshiqi was

warned that failure to r equest the reporter ’ s record would result in the appeal
proceeding on th e c lerk ’ s record alone. After Nokshiqi f ailed to make arran g ements fo r
the court reporter ’ s record , we notified him by letter dated March 30 , 2022 that the
appeal would be submitted on the clerk ’ s record alone a nd that his appel late brief was
due within thirty days.
Nokshiqi did not file an appell ate brief. We n otified No k s hiqi in a letter dated

May 9, 2022 that if he did not file a brief or a satisfactory response , we would abate the

ap peal and direct the trial court to conduct a heari ng pursuant to T EX

. R. A P P

. P.
38.8(b)(2) and ( 3). Nokshiqi did no t file an app ellate b r ief or otherwise respond

. We
abated the appeal once again on May 23, 2022 and directed the trial court to conduct

a not her hearing to determine whether Nokshiqi desired to prosecute thi s appeal and
whether he is indigent, or, if not indigent, whet her reta i ned counsel had abandoned the

appeal

. Th e trial court conducted a hearing on June 9, 2022. Notice of the hearing was

sent by the trial court to Nokshiqi at hi s last known mailing and email addresses , but

Nokshiqi did not appear at the hearing

. The tria l co urt entered the following findi ngs,

conclusions , and recommendations:

1. The A ppellant does not de sire to prosecute the appeal;

2. The Appellant is not indigent, refuses to waive counsel and has been made aware of all applicable deadlines a nd potentia l

co nsequences of his failure to pr osecute his appeal;

3. The Appellant has taken no action in this C ourt to demonstrate a desire to prosecute the appeal.Nokshiqi v. State Page 5 Rule 38.8 (b)(1) provides that a court of appeals may not dismiss an appeal o r

consider an appeal w i tho ut briefs unless it is shown that an appellant no longer desires

to prosecute his appeal or that h e is not indigent and has failed to make necessary

arran gements for fi ling a brief. T EX

. R. A PP

. P. 38.8(b) (1). The trial court has determine d

t hat Noks h iqi is not indigent
, that he has made no arrangements for filing a brief, and

tha t he no longer desir es to prosecute this appeal. See T EX

. R. A PP

. P. 38.8(b)(4). Under

such circumstances, “ the appellate court may consider the appeal without b rie fs, as

j u sti ce may require. ” Id .; see also Thompson v. State , 525 S.W.3d 744, 745 (Tex. A pp.

—

Houston [14th Di st.] 2017, no pet.).

Rule 38.8 is tem pered by Article 44.33(b) of the Code of Criminal Procedure,

which provides that the failure of an appell ant to file a b rief does not aut horize a court
of appeals to dismiss an appeal for such reaso n or to refuse to co nsider the appellant ’ s
case on appeal. T EX

. C ODE C RIM

. P ROC

. A NN

. art. 44.33(b). In such a circumst ance, we

review the limited record availab le for unas s ign ed fundamental error. See Scott v. State ,
167 S.W.3d 62, 66 (Tex. App.

— Waco 2 005, pet. ref ’ d).

W e and the trial court have made every effort to protect Nokshiqi ’ s rights, and

further abatement of this cause would be futile. See Carroll v. St ate , 75 S .W. 3d 6 33, 634
(Tex. App.

— Waco 2002, no pet.). We have submitted the appeal with out briefs and

have reviewed the record for fundamental error. See T EX

. R. A PP

. P. 38.8(b)(4 ); Lott v.

State , 874 S.W.2d 687, 687

- 88 ( Tex. Crim. App. 1994); Carro ll , 75 S.W. 3 d a t 634.Nokshiqi v. State Page 6 Our review of the record discloses no unassigned fundamental error. S ee Lott ,

874 S.W.2d at 688 ; see also Scott , 167 S.W.3d at 66

. Accordingly, we affirm the trial

court ’ s judgment.

MATT JOHNSON Justice

B efore Chie f Jus t ice Gra y , Justice Johnson , and Jus tice Smith A ffirmed Opinion deliv ered a nd filed July 20, 2022 Publish [CR 25 ]