Cristobal Diaz Hernandez v. State ( 2004 )

  In The  

Court of Appeals  

For The  

First District of Texas  

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NO. 01-03-01086-CR

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CRISTOBAL DIAZ HERNANDEZ, Appellant

V.

THE STATE OF TEXAS, Appellee

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On Appeal from County Criminal Court at Law No. 13

Harris County, Texas

Trial Court Cause No. 1165099

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MEMORANDUM OPINION

               A jury convicted appellant, Cristobal Diaz Hernandez, of class B misdemeanor theft, and the trial court sentenced him to confinement in jail for 90 days. Appellant filed a timely pro se notice of appeal and posted an appeal bond. The clerk’s record was filed on November 12, 2003.

               On January 8, 2004, we abated the appeal and remanded the case to the trial court for a hearing because the reporter’s record had not been filed, appellant’s retained trial counsel had withdrawn, and no attorney had entered an appearance in this Court on appellant’s behalf. The case was set for a hearing in the trial court on January 30, 2004, and the trial court’s findings have been filed in this Court. The trial court’s findings are as follows:

1.On January 30, 2004, the trial court asked for announcements in this matter. The State appeared through an assistant district attorney. Appellant failed to appear.

2.Notice of the hearing was sent to Appellant at the address he provided to the court on his personal bond.

3.Appellant has neither contacted the court, nor taken any action to prosecute his appeal.

The trial court concludes that appellant has abandoned this appeal. The trial court recommends that the appellate court dismiss the appeal.

               According to the Rules of Appellate Procedure, we may consider an appeal without briefs if the trial court has found that the appellant no longer desires to prosecute the appeal. See Tex. R. App. P. 38.8(b)(4). We therefore consider this appeal without briefs.

               There is nothing but the clerk’s record presented for review. We have reviewed the record for fundamental error and find none. See Carroll v. State, 75 S.W.3d 633, 634 (Tex. App.—Waco 2002, no pet.); Ashcraft v. State, 802 S.W.2d 905, 906 (Tex. App.—Fort Worth 1991, no pet.); Meza v. State, 742 S.W.2d 708, 708-09 (Tex. App.—Corpus Christi 1987, no pet.).  

               We affirm the judgment of the trial court.

PER CURIAM

Panel consists of Justices Taft, Hanks, and Higley.

Do not publish. Tex. R. App. P. 47.2(b).