Garcia v. State

¶1concurring in part and dissenting in part.

¶2For the following reasons I both concur and dissent to the disposition of this case.

¶3*884This case represents an opportunity to clarify the ramifications of a failure to comply with the appellate rules for briefing. See, Tex.R.App.P. 74 et seq. Unfortunately, the presentation of an inadequate appellate brief is not uncommon. See, Woods v. State, 569 S.W.2d 901, 905 (Tex.Cr.App.1978) (“These ‘Points of Consideration’ are without citation of authorities or argument, are not in compliance with Article 40.09, § 9 V.A.C.C.P., and therefore present nothing for review.”); Sterling v. State, 800 S.W.2d 513, 521 (Tex.Cr.App.1990) (“... [B]y combining more than one contention in a single point of error, an appellant risks rejection on the ground that nothing will be presented for review.”); and, Vuong v. State, 830 S.W.2d 929, 940 (Tex.Cr.App.1992) (“... Appellant cites this Court to no specific constitutional provision, statutory authority, or case law to support this claim.”). Generally, we treat inadequate briefs in two ways: 1) by refusing to address the alleged point of error; and, 2) by addressing the alleged point of error in the interests of justice and judicial economy. See, McWherter v. State, 607 S.W.2d 531, 536 (Tex.Cr.App.1980) (“The brief does not comply with Article 40.09, § 9, V.A.C.C.P., and presents nothing for review.”); Pierce v. State, 777 S.W.2d 399, 418 (Tex.Cr.App.1989) (“Such a failure to cite to relevant portions of the record and set out the legal theory on which appellant rests his contention means that nothing is presented for review.”); Sterling, 800 S.W.2d at 521 (“While such point of error runs the risk of presenting nothing for review, we will, in the interests of judicial economy and justice, address appellant’s claims.”); and, Coble v. State, 871 S.W.2d 192, 202 (Tex.Cr.App.1993) (“While we agree that this point of error is inadequately briefed, appellant’s claim also fails on the merits.”). However, we also have the authority to order a brief redrawn and we have issued orders to that effect. See, Pumphrey v. State, 689 S.W.2d 466, 467 (Tex.Cr.App.1985); and, Hughes v. State, Tex.Cr.App. No. 70, 504, Order delivered October 13, 1992.

¶4I believe the “interests of judicial economy and justice,” would be better served in the instant case by ordering appellant to redraw his brief. The majority finds appellant’s brief is inadequate in twenty-five points of error and that fifteen of the remaining points of error were not preserved for appellate review. Consequently, of the forty-five points of error raised in this appeal we address the merits of only five. Our authority to order a brief redrawn is found within Tex.R.App.P. 74. Rule 74(h) provides “[i]f any brief is unnecessarily lengthy or not prepared in conformity with these rules, the court may require same to be redrawn.”1 Rule 74(o) provides “... [I]f the Court shall strike or refuse to consider any part of a brief, the court shall on reasonable terms allow the same to be amended or supplemented.” Finally, Rule 74(p) provides that although substantial compliance with the appellate rules is sufficient to raise error, “... [FJor a flagrant violation of this rule the court may require a case to be rebriefed.” The majority has found a significant portion of appellant’s brief to be “the most egregious examples of multifarious and inadequately briefed points presented before this court in recent memory.” Majority op., 887 S.W.2d at 881-882. Appellant, through his attorney, has committed “a flagrant violation” of Rule 74.

¶5In Passmore v. Estelle, 607 F.2d 662 (5th Cir.1979), the Fifth Circuit considered this issue. On direct appeal, Passmore’s appellate counsel filed a brief consisting of one sentence. We held the brief presented nothing for our review and affirmed. The Fifth Circuit held that the Due Process Clause of the United States’ Constitution is offended when criminal proceedings become fundamentally unfair. Passmore, 607 F.2d at 663. The Court stated:

It is abundantly clear that the Texas Court of Criminal Appeals had actual knowledge that petitioner was receiving incompetent representation and took no remedial action. The per curiam opinion noted that “[ojbviously, this [one sentence brief] presents nothing for review.” ...

In the instant case, the Texas Court of Criminal Appeals could have ordered peti*885tioner’s counsel to rebrief the case before disposition of the appeal, especially since counsel had attempted untimely to submit a “First Amended Brief,” which the Court refused to consider. As in [Cantrell v. Alabama, 546 F.2d 652 (5th Cir.1977) ], the Constitution requires more than was afforded petitioner.

¶6Id.,607 F.2d at 664. The Court remanded the case to federal district court instructing the trial judge “to enter an order granting the petition for writ of habeas corpus unless the courts of Texas shall grant and afford the petitioner a new and out-of-time appeal_” Id.,607 F.2d at 664. This we did. Passmore v. State, 617 S.W.2d 682 (Tex.Cr.App.1981).

¶7Although the instant brief is by no means a “one-sentence brief,” the similarity between the issues and disposition in Passmore and the instant case remains. By summarily disposing of forty of appellant’s forty-five points of error we only postpone the inevitable. Experience teaches us that we will be forced to address appellant’s rights to effective assistance of appellate counsel and due process, either by order of a federal court or by a post-conviction application for writ of habeas corpus. Tex.Code Crim.Proe.Ann. art. 11.07. Consequently, in the interests of judicial economy and justice, we should order the brief in this case redrawn. If this cannot be accomplished by present appellate counsel, we should remand the case to the trial court for the appointment of new appellate counsel.

¶8With these comments, I dissent to the majority’s decision to not order this brief withdrawn and I join the judgment of the Court in points of error five, seventeen, twenty-seven and twenty-eight.