Gonzalez v. State

Full title: SAMUEL GONZALEZ, IV, Appellant v. THE STATE OF TEXAS, Appellee

Court: Court of Appeals of Texas, First District, Houston

Date published: Nov 1, 2007

NO. 01-05-01155-CR (Tex. App. Nov. 1, 2007)

Opinion

NO. 01-05-01155-CR

Opinion issued November 1, 2007. DO NOT PUBLISH TEX. R. APP. P. 47.2.(b).

On Appeal from County Criminal Court at Law No. 13 Harris County, Texas Trial Court Cause No. 1317661.

Panel consists of Justices TAFT, HANKS, and HIGLEY.

MEMORANDUM OPINION

PER CURIAM.

On December 13, 2005, appellant was convicted by a jury of the misdemeanor offense of driving while intoxicated, and was sentenced to confinement in jail for 30 days. Appellant filed notice of appeal on December 13, 2007. Appellant was released on an appeal bond. The clerk's record was filed on April 6, 2006. Subsequently, we notified appellant that no reporter's record had been filed. We received no response. We abated the appeal for a hearing to determine if appellant was indigent and entitled to a reporter's record without cost. The trial court held a hearing at which counsel Lennard Kemp Whittaker appeared. Counsel Whittaker stated that he would make arrangements for the reporter to be paid for the record. Appellant did not appear at the hearing. We reinstated the appeal. Court reporter Bridwell notified this Court on April 2, 2007 that the reporter's record had not been paid for and that arrangements to pay for the record had not been made. We issued a second order to abate the appeal and remanded the case to the trial court for a hearing to determine if appellant desired to continue his appeal or if appellant had abandoned his appeal. The case was set for a hearing in the trial court on June 22, 2007, and the record of those proceedings has been filed in this Court. Appellant and his counsel did not appear. We order the appeal reinstated. The trial judge conducted the hearing and made the following findings:

"On June 22, 2007, this court conducted hearing to determine the status of the appeal in this matter. The State of Texas was represented by an assistant district attorney of Harris County, Texas. Neither appellant nor his counsel, Mr. Whittaker appeared.

1. The court coordinator of this court notified appellant via mail sent to his last known address, and to a second address provided by appellant's bail bondsman.

2. The bail bond company also attempted to contact the appellant.

3. On June 15, 2007, the court coordinator spoke with attorney Whittaker and informed him of the time, place, and date of this hearing.

4. Attorney Whittaker informed the court coordinator that he would make every effort to contact the appellant.

5. The trial court forfeited appellant's appeal bond and issued a warrant for his arrest.

The trial court concludes as a matter of law that appellant has abandoned his appeal. The trial court recommends the Court of Appeals dismiss this appeal and issue a mandate of affirmance."

According to the Rules of Appellate Procedure, we may consider an appeal without briefs if the trial court has found that the appellant no longer desires to prosecute the appeal. See TEX. R. APP. P. 38.8(b)(4). The trial court did not make such a finding in this case but did make a finding that appellant has abandoned his appeal. We find that because appellant has done nothing to prosecute the appeal and has not kept this Court or the trial court informed of his whereabouts, appellant no longer desires to prosecute the appeal. We further find that good cause exists to suspend the requirement of Rule 38.8(b)(4) that the finding be made by the trial court. See TEX. R. APP. P. 2. Accordingly, we consider this appeal without briefs. There is nothing but the clerk's record presented for review. We have reviewed the record for fundamental error and find none. See Carroll v. State, 75 S.W.3d 633, 634 (Tex.App.-Waco 2002, no pet.); 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.