Addie Sue Neely v. The State of Texas--Appeal from County Court At Law No 2 of Guadalupe County

MEMORANDUM OPINION
No. 04-05-00021-CR
Addie Sue NEELY,
Appellant
v.
The STATE of Texas,
Appellee
From the County Court at Law No. 2, Guadalupe County, Texas
Trial Court No. CCL-04-826
Honorable Frank Follis, Judge Presiding

Opinion by: Steven C. Hilbig, Justice

 

Sitting: Karen Angelini, Justice

Phylis J. Speedlin, Justice

Steven C. Hilbig, Justice

 

Delivered and Filed: March 7, 2007

 

AFFIRMED

Following a jury trial, Appellant, Addie Sue Neely, was convicted of the misdemeanor offense of resisting arrest. The jury assessed punishment at 365 days in jail and a $2,000.00 fine, probated for fifteen months. We affirm.

 

PROCEDURAL HISTORY

Appellant timely perfected her appeal and the clerk's record was filed. However, Appellant failed to pay or make arrangements to pay for the reporter's record. Appellant also failed to file a brief. Pursuant to this court's orders, the trial court made the appropriate findings as required by Rule 38.8(b) of the Texas Rules of Appellate Procedure. See Tex. R. App. P. 38.8(b). Accordingly, we ordered Appellant's appeal submitted and considered without the benefit of a reporter's record or brief. Id.

APPLICABLE LAW AND ANALYSIS

An appellate court may consider an appeal without a reporter's record if no reporter's record has been filed due to the fault of the appellant. Tex. R. App. P. 37.3(c). Here, we conclude that the failure to file a reporter's record in this case is the fault of Appellant. Accordingly, at best, we would review only those issues or points raised in the brief that did not require a reporter's record for determination. See Tex. R. App. P. 37.3(c).

However, in addition to the lack of a reporter's record, Appellant has also failed to file a brief. While the general rule is that an appellate court does not have the authority to dismiss an appeal from 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, the appellate court may consider the appeal on the record alone if the appellant abandons the appeal or, if the appellant is not indigent, has not made the necessary arrangements to file a brief. Tex. R. App. P. 38.8(b)(4). Here, the trial court specifically found Appellant is not indigent and has failed to make the necessary arrangements to file her brief. Accordingly, we may consider the appeal on the record alone to determine if there is any fundamental error. See Lott v. State, 874 S.W.2d 687, 688 (Tex. Crim. App. 1994).

We have reviewed the clerk's record for fundamental error and have found none. Id.

The judgment of the trial court is affirmed.

 

Steven C. Hilbig, Justice

DO NOT PUBLISH