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holding that, although it "ordinarily would require the trial court to hold a hearing to determine whether the appellant wishes to prosecute this appeal," appellant, based on his "failure to pay for the record, file a brief, or apprise us of his address," no longer wished to prosecute appeal, and considering appeal without briefs
Summary of this case from Simmons v. StateOpinion
No. 03-08-00254-CR
Filed: April 2, 2009. DO NOT PUBLISH.
Appealed from the District Court of Bell County, 264th Judicial District No. 61210, Honorable Martha J. Trudo, Judge Presiding. Affirmed.
Before Justices PATTERSON, PEMBERTON and WALDROP.
MEMORANDUM OPINION
We withdraw our prior opinion and judgment dated February 6, 2009, and substitute the following opinion and judgment in their place. Antione Whittman was convicted of possession with intent to deliver a controlled substance. His ten-year prison sentence was probated for ten years. No affidavit of indigence for appeal appears in the clerk's record, and the trial court noted in a March 7, 2008 docket entry that it found appellant was not indigent and told him that he did not qualify for appointed counsel. Whittman filed a notice of appeal pro se on April 17, 2008. A clerk's record was filed, but no reporter's record was filed by the deadline to file records in this case — June 9, 2008 — or since. The reporter informed this Court that Whittman had not paid or made arrangements to pay for the record. By order dated October 15, 2008, this Court set a deadline of November 7, 2008, for Whittman to pay or make arrangements to pay for the reporter's record. If he failed to get a reporter's record prepared, this appeal would be submitted on the clerk's record and his brief would be due December 7, 2008. See Tex. R. App. P. 37.3(c)(1). The original notice was returned to sender with a forwarding address. A notice sent to the new address was also returned to sender, this time without a forwarding address. Whittman has not apprised this Court of his current address, has not informed this Court that he has paid or made arrangements to pay for the reporter's record, and has not filed a brief based on the clerk's record. We ordinarily would require the trial court to hold a hearing to determine whether the appellant wishes to prosecute this appeal. See Tex. R. App. P. 38.8(b)(2). Because our notices to Whittman have been returned as undeliverable and he has not apprised us of his current address, we believe that ordering such a hearing would be futile. We deem from Whittman's failure to pay for the record, file a brief, or apprise us of his address that he no longer wishes to prosecute this appeal. See Tex. R. App. P. 38.8(b)(4). We have reviewed the clerk's record and find no error requiring reversal.