Opinion
No. 01-08-00034-CR
Opinion issued August 12, 2010. DO NOT PUBLISH. TEX. R. APP. P. 47.2(b).
On Appeal from the County Criminal Court at Law No. 13 Harris County, Texas, Trial Court Case No. 1403070.
Panel consists of Justices KEYES, HANKS, and HIGLEY.
MEMORANDUM OPINION
Appellant, Laura Olivia Compian was convicted by a jury of the Class A offense of violation of the City of Houston ordinance regulating a sexually oriented enterprise. The trial court assessed punishment of confinement in jail for six days and a fine of $750.00. The clerk's record was filed on January 17, 2008. On February 5, 2008, the Clerk of this Court gave notice to the parties that the reporter's record had not been timely filed. The reporter's record was filed on February 13, 2008, and the appellant was notified that her brief was due on March 17, 2008. On April 17, 2008, the Clerk of this Court notified the parties that appellant's brief was past due. Because appellant's counsel did not file a brief or a motion for extension of time to file appellant's brief, we abated the appeal, and ordered the case remanded the trial court for a hearing to determine if appellant desired to pursue her appeal. The trial court set a hearing on our order of abatement for March 31, 2009. The reporter's record of those proceedings has been filed in this Court. The record reflects that appellant did not appear at the hearing on March 31, 2009. Appellant's counsel, Paul Decuir, Jr., was present for the hearing. The trial court proceeded with the hearing and stated on the record that the hearing was being conducted to determine whether the appellant wishes to prosecute the appeal. At the hearing, appellant's counsel, Paul Decuir, Jr., advised the trial court "If the court will recall, I've met with the court on two or three different occasions prior to this; and we could not find her, locate her. We did track down to where she had a case filed on her in Beaumont, Jefferson County. Went down there on the date she was supposed to appear and she did not appear . . . that was back in August of [20]08. Counsel Decuir then informed the trial court that appellant had not contacted him after that date. The trial court concluded the abatement hearing by stating "Apparently, she has abandoned the appeal." We note that the records of the Harris County Justice Information System reflect that appellant is on bond. We also note that the clerk's record does not contain a finding of indigency, and the record reflects that counsel Paul Decuir was retained by appellant. On February 9, 2010, the trial court's "Findings and Recommendations on Appellate Court's Order of Abatement" were filed with the Clerk of this Court. The trial court made the following findings of fact: (1) Appellant is represented by attorney Paul Decuir. (2) After filing notice of appeal on June 20, 2007, Mr. Decuir has been unable to locate appellant. (3) His last unsuccessful attempt, in August of 2008 entailed going to Beaumont, Texas where she was to appear in another court on an unrelated matter. (4) Mr. Decuir has no current information on the location of appellant. The trial court concludes that appellant has abandoned her appeal. The trial court recommends that the Court of Appeals dismiss the appeal. The trial court has conducted an abatement hearing and attempted to locate appellant. Appellant has chosen not to keep her counsel, the trial court and this Court informed of her whereabouts. Accordingly, further abatement of this cause would be futile. See Wilson v. State, 39 S.W.3d 390, 391 (Tex.App.-Waco 2001, no pet.) (per curiam). The trial court has determined that Carroll has abandoned her appeal. On May 17, 2010, we reinstate the appeal and advised the parties that the appeal would be set for submission on May 25, 2010. We advised the parties that this appeal would be considered without briefs on the record alone. We did not receive a response to our order of May 17, 2010. 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. However, we find that because appellant has done nothing to prosecute the appeal and has not kept this Court or the trial court informed of her 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 will consider the appeal without briefs. 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 of the trial court. We deny as moot any pending motions.