John Madison Hughes v. The State of Texas--Appeal from County Court at Law No 3 of Galveston County

Opinion issued August 23, 2007

In the

Court of Appeals

For The

First District of Texas

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NO. 01-05-00576-CR

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JOHN MADISON HUGHES, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from County Court at Law No. 3

Galveston County, Texas

Trial Court Cause No. 243555

MEMORANDUM OPINION

Appellant, John Madison Hughes, was convicted by a jury of assault. The trial court assessed a $4000 fine. Appellant filed a timely notice of appeal. Both the clerk's record and the reporter's record were filed in this Court. However, no brief has been filed.

On June 14, 2007, we abated the appeal and remanded the case to the trial court for a hearing because no brief had been filed. See Tex. R. App. P. 38.8(b). We directed the trial court to determine whether appellant wished to prosecute his appeal or whether he had abandoned his appeal. The case was set for a hearing in the trial court on July 26, 2007. The record of those proceedings has been filed in this Court. Accordingly, we order the appeal reinstated.

The record reflects that appellant Hughes did not appear on July 26, 2007. Both the attorney for the State and appellant's counsel appeared. The record reflects that notice of the hearing was sent to appellant's last known address by certified mail and by regular mail, and that the letters were returned as either not picked up or not deliverable unable to forward. At the conclusion of the hearing, the trial judge stated: "I think that we have all made diligent efforts in trying to locate him, the Court through its notices and the efforts by Mr. Cochran . . . it appears from what I have heard that the appellant does not desire to pursue this appeal." The trial court made the following written findings of fact:

(1) This is the second abatement hearing in this matter. Defendant/Appellant Hughes has not been at either of them.

(2) Appellant's counsel, Winston Cochran, has made numerous and varied attempts to contact/ and or notify Appellant. Mr. Cochran has not communicated in any way with Appellant in over a year.

(3) The only reasonable recommendation the Trial Court can make is that the First Court of Appeals deem this appeal abandoned.

The Rules of Appellate Procedure, provide that we may consider an appeal without briefs if the trial court has found that the appellant no longer desires to prosecute the appeal. See Tex. R. App. P. 38.8(b)(4). We hold, based on the evidence presented at the abatement hearing and the trial court's oral and written findings, that appellant has not kept this Court, the trial court, or his counsel informed of his whereabouts, and that appellant no longer desires to prosecute the appeal. Accordingly, we consider this appeal without briefs.

We have reviewed the record for fundamental error and find none. See Carroll v. State, 75 S.W.3d 633, 634 (Tex. App.--Waco 2002, no pet.); Ashcraft v. State, 802 S.W.2d 905, 906 (Tex. App.--Fort Worth 1991, no pet.); Meza v. State, 742 S.W.2d 708, 708-09 (Tex. App.--Corpus Christi 1987, no pet.).

We affirm the judgment of the trial court.

PER CURIAMPanel consists of Justices Taft, Jennings, and Alcala.

Do not publish. Tex. R. App. P. 47.2.(b).