Opinion
No. 04-00-00794-CR
Delivered and Filed: September 29, 2004. DO NOT PUBLISH.
Appeal from the 186th Judicial District Court, Bexar County, Texas, Trial Court No. 98-CR-3206, Honorable Phil Chavarria, Jr., Judge Presiding. Appeal Dismissed.
Judge Chavarria presided at the time of Estrella's conviction. The current presiding judge of the 186th District Court is the Honorable Teresa Herr.
MEMORANDUM OPINION
On April 24, 2002, we ordered this appeal abated and remanded to the trial court for consideration of appellant Adalberto Estrella's motion for new trial. The State filed a petition for discretionary review, which was dismissed by the Court of Criminal Appeals. The appeal was reinstated to this court, then abated to the trial court for review of the motion for new trial. The trial court denied the motion for new trial. This court then set a schedule for briefing, but Estrella did not file either a brief or a motion for extension of time. On June 29, 2004, we ordered Estrella to advise this court in writing no later than July 14, 2004 whether he intended to file an amended brief or stand solely upon the points previously raised. No response was filed. Accordingly, pursuant to Rule 38.8(b) of the Rules of Appellate Procedure, we remanded the cause to the trial court for a hearing to determine whether Estrella desired to continue the appeal, and if so, whether counsel has abandoned the appeal. Following a hearing, the trial court found that counsel had not abandoned the appeal, but had failed to meet the deadlines due to illness and difficulty in locating Estrella or his family. The trial court also found that Estrella does not desire to prosecute this appeal because the errors of which he complains do not appear in the record. In discussion with Estrella and counsel on the record, the trial court noted that Estrella understands any further remedy is by application for habeas corpus and that the trial court is not required to appoint counsel to assist him in that process. The record from the hearing has been filed as a supplemental record in this court. Having reviewed the trial court's record, we conclude Estrella desires to dismiss his appeal and understands the consequences of that dismissal. The cause is reinstated in this court. The appeal is dismissed. See Tex.R.App.P. 42.2(a). Our mandate may be issued early upon proper motion. Tex.R.App.P. 18.1(c).