Opinion
04-21-00423-CR
02-23-2022
Nicholas PUENTE, Appellant v. The STATE of Texas, Appellee
DO NOT PUBLISH
From the 81st Judicial District Court, Wilson County, Texas Trial Court No. CRW2008215 Honorable Russell Wilson, Judge Presiding
Sitting: Beth Watkins, Justice Liza A. Rodriguez, Justice Lori I. Valenzuela, Justice
MEMORANDUM OPINION
PER CURIAM
After the trial court denied his motion to suppress, appellant pled guilty to one count of possession of a controlled substance, reserving the right to appeal the ruling on the motion. Tex.R.App.P. 25.2(a)(2). Appellant's appointed trial counsel filed a notice of appeal. The appellate brief was originally due November 29, 2021 and was not filed. We notified appointed counsel of the deficiency on December 3, 2021. See Tex. R. App. P. 38.8(b)(2). In that notice, we cautioned appointed counsel that if we did not receive an adequate response by December 13, 2021, we would abate this appeal to the trial court for an abandonment hearing. See id. Neither the brief nor a motion for extension of time to file the brief was filed. On December 28, 2021, however, appointed counsel contacted this court and explained that he would file a motion to withdraw.
On January 5, 2022, we ordered the appeal abated for an abandonment hearing. Tex.R.App.P. 38.8(b)(2). The trial court held a hearing on January 19, 2022. Appellant and appointed counsel appeared. Appellant, questioned by the trial court, said that he no longer wanted to appeal. Appointed counsel, who had filed a motion to withdraw the day before the hearing, told the trial court that although he had filed the notice of appeal to preserve appellant's right to appeal, he never intended to represent appellant on appeal. The trial court granted the motion to withdraw and filed findings of fact and conclusions of law. The trial court found, in part:
• Appellant's trial counsel filed a notice of appeal, and intended to file a motion to withdraw, but inadvertently did not do so.
• The trial court asked appellant if he still wished to appeal the pretrial motion to suppress. Appellant stated he no longer wished to appeal the motion to suppress.
• The trial court explained to appellant that if he were indigent, appellate counsel would be appointed for him to represent him on his appeal. Appellant said that he understood, but that he still did not wish to pursue an appeal.
We may consider an appeal without briefs if the trial court has found that the appellant no longer desires to pursue the appeal. Tex.R.App.P. 38.8(b)(4). After reviewing the original and supplemental clerk's and reporter's records we find no unassigned fundamental error. See Jaimes v. State, No. 04-04-00525-CR, 2005 WL 50115, at *1 (Tex. App.-San Antonio Jan. 12, 2005, no pet.) (not designated for publication). We therefore reinstate the appeal and affirm the trial court's judgment.