Metzinger, Kraig v. State ( 2006 )

Affirmed and Memorandum Opinion filed June 8, 2006

Affirmed and Memorandum Opinion filed June 8, 2006.

In The

Fourteenth Court of Appeals

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NO. 14-05-00418-CR

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KRAIG METZINGER, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the Harris County Criminal Court at Law No. 4

Harris County, Texas

Trial Court Cause No. 1261598

M E M O R A N D U M   O P I N I O N

After a jury trial, appellant was convicted of disorderly conduct with display of a firearm and assessed a fine of $1,000 on April 18, 2005.  Appellant filed a notice of appeal the same day.  The clerk=s record was timely filed.  Irma Alvarez, the court reporter responsible for preparation of the record notified this court that she advised appellant=s retained counsel, Abraham M. Fisch, of the cost for preparation of record, but no payment arrangements were made.  Accordingly, on July 5, 2005, the court notified appellant that unless he provided proof of payment for preparation of the record within fifteen days, the court would consider the appeal without a reporter=s record.  See Tex. R. App. P. 37.3(c).  No response to the court=s notice was filed.  Therefore, on August 4, 2005, the court ordered appellant=s counsel to file his brief in this appeal within thirty days. 

Appellant apparently made arrangements to pay for the record, and the court reporter then requested and received two extensions of time to file the reporter=s record on or before November 11, 2005.  No record was filed.  Accordingly, on November 17, 2005, the court ordered Irma Alvarez to file the record by December 16, 2005, or appear before the court to show cause why she should not be held in contempt of court.  On November 28, 2005, Irma Alvarez notified this court that she had not been paid the balance owed for preparation of the record.  She then filed one volume of reporter=s record, covering voir dire, on November 30, 2005.  Appellant=s brief was then due December 30, 2005.  No brief was filed, and appellant was notified that his brief was past due. See Tex. R. App. P. 38.8(b)(2).

On January 13, 2006, appellant requested an extension of time to file his brief, which the court granted until February 13, 2006.  The court noted that no further extensions would be granted absent exceptional circumstances.  No brief or further motion for extension of time were filed.

On March 30, 2006, this court abated the appeal and ordered a hearing to determine why appellant=s counsel had not filed a brief in this appeal.  See Tex. R. App. P. 38.8(b)(3). On April 25, 2006, the trial court conducted the requested hearing.  The record of the hearing and the trial court=s findings were filed in this court on April 27, 2006.

The trial court found that appellant is not indigent.  The court further found that appellant stated he wished to go forward with his appeal, and that appellant=s counsel stated the record from the entire trial was required for the appeal, although he had initially requested preparation of a record of voir dire only. The court found that appellant stated he was able to pay for preparation of the complete record, and the court granted him until May 15, 2006 to pay for the record. 

On May 19, 2006, the trial court filed supplemental findings of fact and conclusions of law.  The court found that the appeal had been pending for over a year and appellant had failed to pay for preparation of the complete record.  The court found that although the delayed request for a complete record may have been purely dilatory, the court had granted appellant and his counsel an additional three weeks to pay for the record.  The court further found that as of May 18, 2006, there had been no further activity by appellant or his counsel and that no payment had been made. Accordingly, the court recommended that this court dismiss the appeal or proceed with the record currently before us.

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

Accordingly, the judgment of the trial court is affirmed.

PER CURIAM

Judgment rendered and Memorandum Opinion filed June 8, 2006.

Panel consists of Chief Justice Hedges and Justices Yates and Guzman.

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