NO. 07-06-0255-CR

IN THE COURT OF APPEALS

FOR THE SEVENTH DISTRICT OF TEXAS

AT AMARILLO

PANEL B

FEBRUARY 15, 2007

______________________________

FRANCISCO PERALTA, 

Appellant

v.

THE STATE OF TEXAS, 

Appellee

_________________________________

FROM THE 242ND DISTRICT COURT OF CASTRO COUNTY;

NO. B2696-0008; HON. ED SELF, PRESIDING

_______________________________

Memorandum Opinion

_______________________________

Before QUINN, C.J., and CAMPBELL and HANCOCK, JJ.

Francisco Peralta filed a notice of appeal from an order revoking his probation.

Appellant’s retained counsel sought to withdraw claiming his client had failed to meet his

obligations pursuant to an employment agreement and failed to pay the expenses for the

clerk’s and reporter’s records as well as a supplemental reporter’s record. We abated the

appeal for the trial court to determine whether appellant desired to prosecute the appeal

and whether he was indigent and entitled to appointed counsel and a free record on
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appeal. After a hearing on November 9, 2006, the trial court made findings that appellant

desired to prosecute his appeal, did not wish to have counsel appointed, was not indigent,

and would be able to retain counsel within 30 days. At that hearing, appellant represented

he would need 30 days to obtain counsel and was warned by the trial court that he needed

to obtain a lawyer as soon as possible. We then reinstated the appeal and granted

counsel’s motion to withdraw. 

By letter dated November 21, 2006, we notified appellant that his brief was due 30

days from that date. On January 3, 2007, we again notified appellant that a brief had not

been received and that he had until January 16, 2007 to file one. On January 16, 2007,

appellant requested an extension of the deadline because he was still “looking for an

attorney.” On January 17, 2007, we notified appellant that his brief was to be filed on

January 31, 2007, or the appeal would be submitted to the court without briefs. To date,

neither a brief nor any correspondence from appellant or any counsel he may have

retained has been received.

When the appellant’s brief remains outstanding, the appellant is not indigent, and

he has failed to make the necessary arrangements for filing a brief, the appellate court may

consider the appeal without briefs as justice may require. TEX.R.APP.P.38.8(b)(4). Here,

the trial court found appellant was not indigent and that he would make the necessary

arrangements for filing his brief. Nevertheless, he has not done so. 

While we believe that no accused should be denied his right of appeal, justice

requires that the exercise of the right to appeal must be held within the framework of the

rules of appellate procedure. Jones v. State, No. 14-04-01123-CR, 2005 Tex. App. LEXIS

6410 at *3 (Tex. App.–Houston [14th Dist.] August 11, 2005, no pet.) (not designated for
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publication). Furthermore, requiring any appellant to follow the rules does not infringe upon

his right of appeal. Id. at 3-4. Therefore, justice requires that this appeal be determined

without a brief.

Having sua sponte reviewed the entire appellate record and found no error, we

affirm the final judgment of the trial court. See id. (affirming the judgment); Clark v. State,

No. 10-03-0268-CR, 2005 Tex. App. LEXIS 3085 at *2 (Tex. App.–Waco, April 20, 2005,

no pet.) (not designated for publication) (affirming the judgment).

Brian Quinn 

 Chief Justice

Do not publish.