Delira v. State

Full title: JOSE ALFREDO DELIRA, Appellant v. THE STATE OF TEXAS, Appellee

Court: Court of Appeals of Texas, Tenth District, Waco

Date published: Apr 23, 2008

No. 10-08-00007-CR (Tex. App. Apr. 23, 2008)

Opinion

No. 10-08-00007-CR

Opinion Delivered and filed April 23, 2008. DO NOT PUBLISH.

Appeal from the County Court Freestone County, Texas, Trial Court No. 21633. Appeal dismissed.

Before Chief Justice GRAY, Justice VANCE, and Justice REYNA.

MEMORANDUM OPINION

PER CURIAM.

The State has filed a motion to dismiss this appeal for want of prosecution because of the appellant's failure to request preparation of the clerk's record and his failure to pay or make arrangements to pay the clerk's fee for preparation of the record. See TEX. R. APP. P. 37.3(b). The State's motion is supported by the affidavit of the trial court clerk. The appellant has not responded to the State's motion. Rule of Appellate Procedure 37.3(b) provides:

If the trial court clerk failed to file the clerk's record because the appellant failed to pay or make arrangements to pay the clerk's fee for preparing the clerk's record, the appellate court may-on a party's motion or its own initiative-dismiss the appeal for want of prosecution unless the appellant was entitled to proceed without payment of costs. The court must give the appellant a reasonable opportunity to cure before dismissal.

Id. Here, the State's motion has placed appellant on notice of the need to request preparation of the clerk's record and pay or make arrangements to pay the clerk's fee for its preparation. Appellant is represented by retained counsel and has not taken any of the necessary steps to proceed without payment of costs. See id. 20.2. Because the motion has been pending for more than ten days, appellant has had "a reasonable opportunity to cure," but he has failed to do so. Id. 37.3(b). Accordingly, the State's motion is granted, and the appeal is dismissed for want of prosecution. Id.