Kelvin Ray McAllister v. The State of Texas--Appeal from 175th Judicial District Court of Bexar County

No. 04-97-00969-CR
Kevin Ray MCALLISTER,
Appellant
v.
The STATE of Texas,
Appellee
From the 175th Judicial District Court, Bexar County, Texas
Trial Court No. 95-CR-0491
Honorable Mary Roman, Judge Presiding

PER CURIAM

Sitting: Catherine Stone, Justice

Paul W. Green, Justice

Sarah B. Duncan, Justice

Delivered and Filed: December 9, 1998

AFFIRMED

On August 24, 1995, the trial court found appellant, Kevin Ray McAllister, guilty of possession of cocaine and, pursuant to a plea bargain, assessed punishment at two years confinement, probated for two years. The State later moved to revoke McAllister's probation, alleging he violated several conditions of his probation. McAllister pled true to one of the allegations. The trial court revoked McAllister's probation and sentenced him to two years' imprisonment. Although he timely perfected his appeal, McAllister did not file a brief. Accordingly, the case was abated for the trial court to determine whether McAllister desires to prosecute his appeal, whether he is indigent, and whether appointed or retained counsel has abandoned the appeal. See Tex. R. App. P. 38.8 (b).

The trial court filed a transcription of the abandonment hearing which indicates that McAllister no longer desires to prosecute his appeal. At the hearing, McAllister stated that he had filed a motion to dismiss his appeal. Because our records do not reflect that such motion was received, we informed McAllister that his appeal would be considered on the record only unless a motion to withdraw his notice of appeal was received by this court. McAllister has not responded to our notice.

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

PER CURIAM

DO NOT PUBLISH

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