Andrew Tristan v. The State of Texas--Appeal from 379th Judicial District Court of Bexar County

MEMORANDUM OPINION

No. 04-03-00072-CR

Andrew TRISTAN,

Appellant

v.

The STATE of Texas,

Appellee

From the 379th Judicial District Court, Bexar County, Texas

Trial Court No. 1999-CR-3359

Honorable Bert Richardson, Judge Presiding

Opinion by: Sandee Bryan Marion, Justice

Sitting: Sarah B. Duncan, Justice

Sandee Bryan Marion, Justice

Phylis J. Speedlin, Justice

Delivered and Filed: November 5, 2003

AFFIRMED

The trial court adjudicated defendant, Andrew Tristan, guilty of possession of a controlled substance, and assessed punishment at six month's confinement. We affirm.

Although defendant timely perfected his appeal, he did not file a brief. Accordingly, on July 22, 2003, we abated this appeal for the trial court to determine whether defendant desired to prosecute his appeal. See Tex. R. App. P. 38.8(b). The trial court responded to our order, stating defendant did not wish to prosecute his appeal and appointed counsel had abandoned the appeal because defendant had failed to contact his attorney.

We do not have the authority to dismiss the appeal of a criminal conviction or sentence unless the defendant moves to voluntarily withdraw or dismiss the appeal or has escaped from custody. See Tex. R. App. P. 42.2(a), 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 defendant that his appeal would be considered without benefit of briefing. Defendant 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.).

Sandee Bryan Marion, Justice

DO NOT PUBLISH