Bradley James Austin v. The State of Texas--Appeal from 182nd District Court of Harris County

MEMORANDUM OPINION
No. 04-03-00127-CR
Bradley James AUSTIN,
Appellant
v.
The STATE of Texas,
Appellee
From the 182nd Judicial District Court, Harris County, Texas
Trial Court No. 932756
Honorable Joe. N. Dean, Judge Presiding

Opinion by: Catherine Stone, Justice

Sitting: Catherine Stone, Justice

Sarah B. Duncan, Justice

Karen Angelini, Justice

Delivered and Filed: July 23, 2003

AFFIRMED

Bradley James Austin pleaded guilty to theft under $1,500 and the trial court assessed punishment at 180-days confinement. We affirm.

Although he timely perfected his appeal, Austin did not file a brief. Accordingly, on March 25, 2003, we abated this appeal for the trial court to determine whether Austin, who was proceeding pro se, desired to prosecute his appeal, whether he was indigent and should have appointed counsel to prepare a brief on his behalf, and if not indigent, whether he had made arrangements for filing a brief. See Tex. R. App. P. 38.8(b). The trial court responded to our order, stating Austin had abandoned his appeal.

We do not have the authority to dismiss the appeal of a criminal conviction or sentence unless: (1) the defendant moves to voluntarily withdraw or dismiss the appeal, see Tex. R. App. P. 42.2(a); or (2) the appellant has escaped from custody. See Tex. R. App. P. 42.4. Neither exception applies here. However, when an appellant in a criminal case abandons his appeal, the appellate court may consider it on the record alone. Scotka v. State, 856 S.W.2d 790, 791 n.1 (Tex. App.--San Antonio 1993, no pet); Tex. R. App. P. 38.8(b)(4). Therefore, after receiving the supplemental record from the trial court, we notified Austin that his appeal would be considered without benefit of the reporter's record or briefing. Austin did not respond.

We have reviewed the record in this appeal for fundamental error and have found none. We therefore affirm the trial court's judgment. See Meza v. State, 742 S.W.2d 708, 708-09 (Tex. App.--Corpus Christi 1987, no pet.).

Catherine Stone, Justice

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