Perales, Roberto E. v. State ( 2004 )

Affirmed and Memorandum Opinion filed November 18, 2004

Affirmed and Memorandum Opinion filed November 18, 2004.

In The

Fourteenth Court of Appeals

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NO. 14-04-00803-CR

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ROBERTO E. PERALES, Appellant

V.

THE STATE OF TEXAS, Appellee

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On Appeal from the County Criminal Court at Law No. 1

Harris County, Texas

Trial Court Cause No. 9114079

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M E M O R A N D U M   O P I N I O N

After a guilty plea, appellant was convicted of the misdemeanor offense of driving while intoxicated, and sentenced on December 5, 1991, to fifty days= confinement in the Harris County Jail and a fine of $100.  There is no reporter=s record.  The clerk=s record was filed on August 19, 2004.  The record contains a form notice of appeal, with a file-stamp date of January 8, 1992, that contains no signature by appellant or appellant=s counsel.  The signature line for the appellant contains the following: Ax Def not present.@ The record also contains a blank document with a heading of ANotice of Appeal.@ This document contains no file stamp.

We issued an order on September 2, 2004, asking the trial judge to conduct a hearing to determine whether appellant had filed a notice of appeal and to make findings and conclusions about the documents in the clerk=s record.

On September 29, 2004, the trial court reviewed the record, rather than conducting a hearing, and made findings of fact and conclusions of law.  The supplemental clerk=s record containing these findings and conclusions was filed in this court on September 30, 2004.

The trial court found that the blank document, entitled ANotice of Appeal,@ was incorporated in a document filed on January 3, 1992, entitled, APetitioners Application for Writ of Habeas Corpus to withdraw plea of Nolo contender [sic].@  The trial court found that the application for writ of habeas corpus was considered and denied on January 14, 1992.  The trial court further found that the form notice of appeal was not signed by appellant, but contained the style of the case, including appellant=s name and the cause number.  The trial court found that this form was filed by the district clerk on January 3, 1992. The trial court found that no further communications were received from appellant until May 12, 2004, when a letter was received from appellant inquiring about his purported 1992 appeal. The trial court concluded that, if appellant did file the form notice of appeal, appellant had abandoned the appeal by failing to inquire about the status of the appeal for over twelve years.

On the basis of those findings, this court has considered the appeal without briefs.   See Tex. R. App. P. 38.8(b).  We find no fundamental error.

Accordingly, the judgment of the trial court is affirmed.

PER CURIAM

Judgment rendered and Memorandum Opinion filed November 18, 2004.

Panel consists of Anderson, Hudson, and Frost.

Do Not Publish C Tex. R. App. P. 47.2(b).