No. 05-08-01444-CR
Opinion Filed July 29, 2010. DO NOT PUBLISH. Tex. R. App. P. 47
On Appeal from the 422nd District Court, Kaufman County, Texas, Trial Court Cause No. 26619-422.
Before Justices BRIDGES, FITZGERALD, and FILLMORE.
PER CURIAM.
Terri Kay Gonzalez appeals her convictions, in a two-count indictment, for possession of methamphetamine in an amount of four grams or more but less than 200 grams and possession of marijuana in an amount of fifty pounds or less but more than five pounds. After accepting appellant's open guilty pleas and plea of true to an enhancement paragraph and hearing testimony from appellant and the arresting officers, the trial court assessed punishment at fifteen years' confinement for the methamphetamine offense and ten years' confinement for the marijuana offense. Because all dispositive issues are clearly settled in law, we issue this memorandum opinion. See Tex. R. App. P. 47.2(a), 47.4.
We note that although the indictment and the record of proceedings before us indicates appellant was charged with possession with intent to deliver, the trial court's written judgment reflects she was convicted only of possession. In light of the limited review we undertake in this case and the absence of explanation from the parties, we decline to address the inconsistency.
Procedural History
Appellant's brief was due in this appeal on March 13, 2009. On June 2, 2009, the Court abated the appeal and ordered the trial court to conduct a hearing to determine why appellant had not filed her brief. During the hearing, appellant's retained appellate counsel informed the trial court that, in her judgment, there were no grounds for appeal and that either she or retained trial counsel would contact appellant and discuss whether or not appellant wished to appeal. The trial court recommended to this Court that the case remain abated for thirty days to allow appellant and counsel to communicate with each other and decide whether appellant was indigent and whether she wanted to pursue the appeal. On December 9, 2009, the Clerk of the Court transmitted a letter to counsel inquiring about the status of the appeal. Appellate counsel filed a responsive letter on December 28, 2009 indicating that she had requested trial counsel return the record to her to determine if an appeal could go forward in light of new authority. On June 11, 2010, trial counsel filed on appellant's behalf a motion for leave to withdraw the notice of appeal. By order dated July 2, 2010, the Court denied the motion on the ground it was not signed by appellant as required by the rules of appellate procedure. See Tex. R. App. P. 42.2. Analysis
The record shows that in a hearing held on June 22, 2009, the trial court recommended granting thirty additional days for appellant to apply for status as an indigent and to determine if she wanted to pursue the appeal. This Court has given appellant over a year to apply for indigent status or file a brief. Appellant has done neither. Appellant has been continuously represented by retained counsel. Based on the hearing before the trial court, the inactivity in this case, and retained counsel's filing of a defective motion for leave to withdraw the notice of appeal, we conclude appellant is not indigent and does not desire to file a brief or pursue the appeal. On July 2, 2010, the Court ordered this appeal submitted without briefs. Without briefs, no issues are before us. Finding no fundamental error, we affirm the trial court's judgments.