Ann Marie Trevino v. State ( 2009 )

Opinion issued August 6, 2009  

In The  

Court of Appeals  

For The  

First District of Texas  

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NO. 01-05-00413-CR

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ANN MARIE TREVINO, Appellant

V.

THE STATE OF TEXAS, Appellee

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On Appeal from the 240th District Court

Fort Bend County, Texas

Trial Court Cause No. 41208

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MEMORANDUM OPINION  

          Appellant, Ann Marie Trevino, pleaded guilty to the state jail felony offense of debit card abuse without an agreement as to punishment with the State. The trial judge assessed punishment at confinement for 18 months. Appellant filed a pro se notice of appeal.

          We abated this appeal and remanded the case to the trial court for a hearing because no brief had been filed and because appellant’s court appointed counsel notified the Clerk of this Court that he had not been able to make contact with appellant to determine if she wanted to proceed with the appeal. In response to our order of abatement, the trial court scheduled a hearing, and issued notice and service for appellant, Ann Marie Trevino to appear at the hearing. Appellant did not appear at the hearing. We order the appeal reinstated.   

          On March 16, 2009, the trial court filed findings of fact and conclusions of law with the Clerk of this Court. The following findings were made by the trial court:

1) On April 5, 2005, appellant, Ann Marie Trevino, was convicted of the offense of debit card abuse and was sentenced to eighteen months in state jail wit credit for ninety-seven days. On April 12, 2005, Appellant filed a notice of appeal, but as of this date has not filed an appellate brief.

2) There have been numerous attempts to contact appellant to determine whether or not she wishes to pursue her appeal, but to no avail. Specifically:

A) Appellant’s attorney, Stephen Doggett, who was appointed to her case as appellate counsel on August 31, 2005, sent a letter to appellant at her last known address but it was returned.

B) Mr. Doggett then ran a computer search to determine if appellant’s last known address was , in fact her address. The search returned three possible addresses all of which Mr. Doggett visited personally.

C) On November 6, 2006, Mr. Doggett made contact with appellant’s sister at 1600 Maiden Lane, Richmond, Texas, one of the addresses that turned up in his computer search, and left his card for appellant to contact him.

D) On December 1, 2006, Mr. Doggett again traveled to 1600 Maiden Lane, Richmond, Texas, and visited with appellant’s mother. Mr. Doggett again left his card for appellant to contact him.

                    E)      On February 18, 2009, Mr. Doggett again traveled to 1600 Maiden Lane, Richmond, Texas, and spoke with appellant’s stepfather, David Provost. Mr. Doggett again explained why he needed to speak to appellant and asked that she contact him. Mr. Trevino said he would relay the message to appellant, but Mr. Doggett has not received any response.

F) On December 8, 2006, Deputy Robert Brown of the Fort Bend County, Precinct One Constable’s Office attempted to personally serve appellant but was unable to locate her. The officer’s return indicates that appellant had not been seen at her address at 1600 Maiden Lane, Richmond, Texas for one month.

G) On February 9, 2009, a summons was issued for appellant to appear to inform the Court whether or not she wished to pursue her appeal. Pursuant to the Court of Appeals’ Order, this notice was sent certified mail, return receipt requested.

H) On March 6, 2009, a show cause order was issued and attempts were again made to locate appellant. Chief Deputy Rand Dhuly of the Fort Bend County Precinct One Constables Office reported to the Court, through the District Attorney’s Office, that he had attempted to personally serve appellant, but no one answered the door at 1600 maiden Lane, Richmond, Texas. Chef Deputy Dhuly went next door and spoke to neighbors who indicated they did not know Ann Marie Trevino.

          The record reflects that appellant Trevino was released from custody in June of 2005. The record also reflects that the trial court found that (1) reasonable attempts have been made to locate appellant to notify her of the proceedings in this case and to determine whether she wishes to pursue her appeal, and (2) because appellant has not replied to any of the repeated attempts to contact her regarding her appeal, this court hereby determines and concludes that appellant has abandoned her 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). After reviewing the abatement hearing records, we find that appellant has done nothing to prosecute this appeal, that she has not kept this Court, the trial court, or her attorney informed of her whereabouts, and that she has abandoned her appeal and no longer desires to prosecute this appeal. Accordingly, we will consider the 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.

          We deny as moot any pending motions.

PER CURIAM

Panel consists of Chief Justice Radack and Justices Sharp and Taft.

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