in the Interest of A.D.G., a Child ( 2012 )

NO. 07-12-0109-CR
IN THE COURT OF APPEALS
FOR THE SEVENTH DISTRICT OF TEXAS
AT AMARILLO
PANEL B
MAY 30, 2012
_____________________________
SILVERIO DELGADO-GUTIERREZ,
Appellant
v.
THE STATE OF TEXAS,
Appellee
_____________________________
FROM THE 242nd DISTRICT COURT OF HALE COUNTY;
NO. B18797-1104; HONORABLE ED SELF, PRESIDING
_____________________________
Opinion
_____________________________
Before QUINN, C.J., and CAMPBELL and HANCOCK, JJ.
Silverio Delgado-Gutierrez (appellant) filed a notice of appeal from his conviction
for arson. Subsequently, we received requests for extensions of time from both the
court reporter and the clerk to file their respective records. The requests were founded
upon appellant’s failure to request preparation of the records or his failure to pay or
make arrangements to pay for the records. Furthermore, counsel for appellant filed a
motion to withdraw on April 26, 2012. He informed us that the location of his client was
unknown and that his diligent efforts to find him were unsuccessful. These
circumstances led the court to abate the appeal to the trial court. The latter was then
asked to determine whether appellant 1) desired to prosecute this appeal, 2) was
indigent and, therefore, entitled to a free record and appointed counsel on appeal, and
3) had absconded from the jurisdiction of the state. Though the clerk’s record has been
filed with this court, the reporter’s record remains outstanding.
Upon our abatement, the trial court convened a hearing in attempt to garner
information needed to address our inquiries. Thereafter, it filed its findings. They
consist of the following: 1) by written order, appellant was ordered to appear in person
for a hearing scheduled on May 18, 2012, to determine whether he wished to pursue his
appeal, 2) counsel for appellant, David Martinez, received a copy of the order setting a
hearing, 3) appellant had received community supervision as punishment for his
conviction of arson and had been released to the Hale County Community Supervision
and Corrections Department, 4) counsel for appellant timely sent written notice to
appellant of the hearing scheduled May 18th, 5) the trial court timely sent written notice
to appellant at his last known address, 6) the Hale County Community Supervision and
Corrections Department unsuccessfully attempted to contact appellant regarding the
need for his presence at the hearing, 7) appellant’s current whereabouts are unknown
to the probation department, 8) on the day of the hearing, appellant failed to appear, 9)
the State and appellant’s attorney did appear at the hearing, 10) at this time, appellant
is a fugitive whose whereabouts are unknown, and 11) at this time, it is unknown to the
court whether appellant wishes to pursue his appeal.
To date, neither the reporter’s record nor any indication that appellant
endeavored to secure a reporter’s record has been received by this court. Nor do we
2
have any indication, aside from his notice of appeal, that he desires to continue the
proceeding. Nor do we have any indication that anyone, other than appellant, is
responsible for the inaction. Yet, rather than dismiss for want of prosecution, we opt to
follow a procedure we adopted in Vieira v. State, No. 07-95-0072-CR (Tex. App.–
Amarillo February 22, 1996) (not designated for publication) and submit the case on the
clerk’s record and without briefs. TEX. R. APP. P. 38.8(b); see Horvath v. State, 884
S.W.2d 789, 789-90 (Tex. App.–Fort Worth 1994, no pet.) (acknowledging this as an
appropriate course of action in circumstances akin to those at bar).
We have reviewed the entire clerk’s record and found no reversible error. The
indictment, jury charge and judgment appear valid and satisfactory. Pretrial motions
were filed, heard and ruled on. The State timely filed appropriate notices and
responses to discovery. Additionally, the punishment assessed was within the range
applicable to the type of felony for which appellant was convicted, that being a felony of
the first degree.1 Furthermore, the trial court found, in its judgment, that appellant was
able to pay attorney’s fees and ordered him to pay attorney’s fees in the amount of
$750.00.
Accordingly, we affirm the judgment of the trial court.
Brian Quinn
Chief Justice
Publish.
1
Punishment assessed by the jury was five years in prison and no fine. However, his sentence
was probated for a period of ten years.
3