Stavinoha v. State

82 S.W.3d 690 (2002)

Howard J. STAVINOHA, Appellant,
v.
The STATE of Texas, Appellee.

No. 10-01-348-CR.

Court of Appeals of Texas, Waco.

June 19, 2002.

Thomas R. Steinmeyer, Houston, for appellant.

Charles A. Rosenthal, Jr., Harris County Dist. Atty., Houston, for appellee.

Before Chief Justice DAVIS, Justice VANCE, and Justice GRAY.

OPINION

TOM GRAY, Justice.

Howard J. Stavinoha pled guilty to aggravated assault. Pursuant to the State's plea recommendation, the trial court assessed Stavinoha's punishment at three years in prison. Stavinoha timely filed a notice of appeal stating his desire to complain of "jurisdictional defects."

The clerk's record was filed on October 24, 2001. Stavinoha waived the making of a reporter's record. Thus, Stavinoha's brief was due on Monday, November 26, 2001. We notified counsel by letter dated December 17, 2001, that Stavinoha's brief was overdue. Counsel responded by filing a motion to withdraw on January 3, 2002. We denied counsel's motion on January 23 because it did not fully comply with the requirements of Rule of Appellate Procedure 6.5. We have heard nothing since.

We abated this cause on February 13, 2002, to the trial court with instructions to hold a hearing to determine: (1) why no brief has been filed on Stavinoha's behalf; (2) whether his attorney has abandoned the appeal; and (3) whether Stavinoha has abandoned the appeal. See Tex.R.App. P. 38.8(b)(2).

The trial court held a hearing on April 25, 2002. Stavinoha's counsel appeared, but Stavinoha did not. The court learned from counsel that counsel's last contact with Stavinoha was in late October where Stavinoha called from the Montgomery County jail and wished to dismiss his appeal. Counsel sent Stavinoha a motion to dismiss to sign, but Stavinoha never returned it. Counsel no longer knows where Stavinoha is residing; the Montgomery County jail no longer has possession of him. Stavinoha's family believes he is in prison; however, prison officials claim he is not in the prison system. Counsel told the trial court he has abandoned the appeal for Stavinoha. After counsel's testimony, the trial court found that Stavinoha had abandoned his appeal.

It has now been over seven months since the clerk's record was filed.

Stavinoha has completely failed in his duty to prosecute this appeal, to contact this Court or his attorney, or to take any further action toward prosecuting this appeal. Under these circumstances, we conclude this appeal was not taken with the intention of pursuing it to completion, but instead was taken for the purposes of delay. Accordingly, we dismiss this appeal, under our inherent authority, for want of prosecution. Bush v. State, 80 S.W.3d 199 (Tex.App.-Waco June 12, 2002, no pet. h.); see also McDaniel v. State, 75 S.W.3d 605 (Tex.App.-Texarkana 2002, no pet. h.); Rodriguez v. State, 970 S.W.2d 133, 135 (Tex.App.-Amarillo 1998, pet. ref'd).