Opinion
No. 07-08-0174-CR
September 29, 2008. DO NOT PUBLISH.
Appealed from the 242nd District Court of Hale County; No. B 14776-0301; Hon. Ed Self, Presiding.
Before CAMPBELL and HANCOCK and PIRTLE, JJ.
ORDER OF ABATEMENT
Jay Gid Bryan filed a notice of appeal from the trial court's judgment adjudicating him guilty of endangering a child, revoking his community supervision and sentencing him to two years confinement in the State Jail Division of the Texas Department of Criminal Justice. The reporter's record and clerk's record have been filed. Appellant's brief was due to be filed on June 20, 2008, but has not yet been filed. By letter dated July 3, this Court notified appellant's retained attorney of the failure and also explained that if no response was received by July 14, the appeal would be abated pursuant to Rule 38.8(b) of the Texas Rules of Appellate Procedure. On July 8, we received a document wherein counsel explained he was never retained or appointed to represent appellant on appeal. On August 19, we abated this appeal to the trial court and ordered the trial court to utilize whatever means necessary to determine: (1) whether appellant truly desires to prosecute the appeal; and (2) whether appellant is indigent and entitled to appointed counsel. The trial court conducted a hearing on September 5, 2008, and issued the following findings: (1) a representative of appellant's bondsman appeared, asking that a warrant be issued for appellant because he had failed to comply with the conditions of his contract; appellant's bond was reset and a warrant was issued for appellant's arrest; (2) appellant's case was first called at 1:00 p.m. and appellant failed to appear; (3) appellant's case was called again at 1:04 p.m. and 2:10 p.m. and each time, no one responded; (4) appellant is a fugitive; (5) the trial court is unable to determine if appellant truly desires to prosecute the appeal; and (6) the trial court is unable to determine if appellant is indigent. Accordingly, the appeal is abated pending further order of the Court. It is so ordered.
See Tex. Penal Code Ann. § 22.041(c) (Vernon 2007). This offense is a state jailfelony, punishable by confinement in a state jail for any term of not more than two yearsor less than 180 days and a fine not to exceed $10,000. Tex. Penal Code Ann. § 12.35(Vernon 2007).