Summary
considering the appeal on the record after the trial court made findings under Rule 38.8(b) that appellant "appears to have absconded"
Summary of this case from Stephens v. StateOpinion
No. 10-99-306-CR
Opinion issued and filed February 14, 2001
Appeal from the 292nd District Court, Dallas County, Texas, Trial Court # F97-55695.
Affirmed
Kenneth Weatherspoon, Dallas, for appellant.
Bill Hill, Dallas County District Attorney, Dallas, for appellee.
Before Chief Justice Davis, Justice Vance, and Justice Gray.
MEMORANDUM OPINION
The trial court found Charles Edward Wilson guilty of the offense of possession of cocaine with the intent to deliver and assessed punishment of 5 years' incarceration and a $1,000 fine. Wilson was released from confinement on a $10,000 appeal bond. Although he timely filed his notice of appeal and the record has been filed with this court, his retained attorney has not filed a brief on his behalf. We abated the cause to the trial court for a determination of why no brief had been filed on Wilson's behalf, whether he desires to proceed with the appeal, and whether he is indigent. Tex.R.App.P. 38.8(b)(1). The trial court conducted a hearing and found that Wilson "appears to have absconded." Because Wilson did not appear at the hearing, the trial court was unable to determine if Wilson wished to prosecute this appeal or whether he is indigent. The court did find that Wilson's retained attorney has not abandoned the appeal, although that attorney has not been paid. Counsel contends that he attempted, unsuccessfully, to contact Wilson. Certified letters were sent to the last known address of Wilson and his mother, and both were returned as undeliverable. The record reflects that the Dallas Police Department has been searching for Wilson and has been unable to find him. Because he has had no contact with Wilson and because he has not been paid to pursue this appeal, Wilson's counsel cannot file a brief.
Furthermore, counsel paid for the appellate record out of his own funds.
Because he has no contact with Wilson, he likewise cannot certify compliance with Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), in filing a brief stating that the appeal is frivolous. Sutherland v. State, 658 S.W.2d 169, 170 (Tex.Crim.App. 1983).
Abating this case again would be useless. Sutherland v. State, 658 S.W.2d 169, 170 (Tex.Crim.App. 1983); Ricketts v. State, No. 10-00-096-CR, slip op. at 2 (Tex.App.-Waco 2001, no pet. h.). We have carefully reviewed the record before us and find nothing that requires a reversal of this cause. See id.; s ee also Wade v. State, 31 S.W.3d 723, 725-26 (Tex.App.-Houston [1st Dist.] 2000, no. pet. h.).
The judgment is affirmed.