Opinion
No. 04-03-00072-CR.
Delivered and Filed: November 5, 2003. DO NOT PUBLISH.
Appeal From the 379th Judicial District Court, Bexar County, Texas, Trial Court No. 1999-CR-3359, Honorable Bert Richardson, Judge Presiding. AFFIRMED.
Sitting: Sarah B. DUNCAN, Justice, Sandee Bryan MARION, Justice, Phylis J. SPEEDLIN, Justice.
MEMORANDUM OPINION
The trial court adjudicated defendant, Andrew Tristan, guilty of possession of a controlled substance, and assessed punishment at six month's confinement. We affirm. Although defendant timely perfected his appeal, he did not file a brief. Accordingly, on July 22, 2003, we abated this appeal for the trial court to determine whether defendant desired to prosecute his appeal. See Tex.R.App.P. 38.8(b). The trial court responded to our order, stating defendant did not wish to prosecute his appeal and appointed counsel had abandoned the appeal because defendant had failed to contact his attorney. We do not have the authority to dismiss the appeal of a criminal conviction or sentence unless the defendant moves to voluntarily withdraw or dismiss the appeal or has escaped from custody. See Tex.R.App.P. 42.2(a), 42.4. Neither exception applies here. However, when an appellant in a criminal case abandons his appeal, the appellate court may consider it on the record alone. Scotka v. State, 856 S.W.2d 790, 791 n. 1 (Tex.App.-San Antonio 1993, no pet); Tex.R.App.P. 38.8(b)(4). Therefore, after receiving the supplemental record from the trial court, we notified defendant that his appeal would be considered without benefit of briefing. Defendant did not respond. We have reviewed the record in this appeal for fundamental error and have found none. We therefore affirm the trial court's judgment. See Meza v. State, 742 S.W.2d 708, 708-09 (Tex.App.-Corpus Christi 1987, no pet.).