Cirilo Diaz, Jr. v. The State of Texas--Appeal from 242nd District Court of Hale County (majority)
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NO. 07-11-0297-CR
IN THE COURT OF APPEALS
FOR THE SEVENTH DISTRICT OF TEXAS
AT AMARILLO
PANEL C
JANUARY 12, 2012
______________________________
CIRILO DIAZ, JR., APPELLANT
V.
THE STATE OF TEXAS, APPELLEE
_________________________________
FROM THE 242ND DISTRICT COURT OF HALE COUNTY;
NO. B17995-0904; HONORABLE ED SELF, JUDGE
_______________________________
Before QUINN, C.J., and HANCOCK and PIRTLE, JJ.
MEMORANDUM OPINION
In 2009, Appellant Cirilo Diaz, Jr., was convicted of burglary of a habitation1 and
sentenced to five years confinement and assessed a $750 fine.
Punishment was
suspended in favor of five years community supervision. In 2011, at a hearing on the
State's motion to revoke, Appellant entered a plea of true to the State's allegations and
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Tex. Penal Code Ann. ยง 30.02 (West 2011).
the trial court found he had violated the terms and conditions of community supervision
and revoked his community supervision. The trial court assessed the original sentence.
Appellant perfected this appeal. The reporter's record has been filed.
By order of abatement dated October 13, 2011, this Court abated this appeal and
remanded the cause to the trial court to consider retained counsel's motion to withdraw
and whether Appellant was indigent and entitled to appointed counsel to prosecute this
appeal. The trial court held a hearing on October 27, 2011. The State and Appellant's
counsel were present but Appellant failed to appear. The trial court found that Appellant
was a fugitive, forfeited his appeal bond, ordered that a capias issue for his arrest and
raised the amount of a new bond to $100,000. Appellant's counsel's motion to withdraw
was not considered.
Counsel then filed an amended motion to withdraw in this Court. By order dated
November 29, 2011, this Court granted the motion after finding it complied with Rule 6.5
of the Texas Rules of Appellate Procedure. By that same order, Appellant was declared
a pro se litigant and ordered to certify to this Court by December 19, 2011, whether he
had requested preparation of the clerk's record and complied with Rule 35.3(a)(2) of the
Texas Rules of Appellate Procedure on arranging to pay for the record. Appellant was
admonished that failure to comply would result in dismissal of his appeal.
To date, Appellant has not responded to this Court's order and the clerk's record
from the revocation proceeding remains outstanding. Rule 37.3(b) of the Texas Rules
of Appellate Procedure authorizes dismissal of a criminal case for want of prosecution if
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no clerk's record is filed due to Appellant's fault, provided the appellant is not entitled to
proceed without the payment of costs and he has been given a reasonable opportunity
to cure the omission before dismissal. Here, Appellant has not been declared unable to
pay costs since having retained counsel to pursue this appeal. Furthermore, he has
been given notice of his omission and a reasonable opportunity to cure. Given his
status as a fugitive and his failure to comply with a directive from this Court, we dismiss
this appeal. Tex. R. App. P. 37.3(b).
Patrick A. Pirtle
Justice
Do not publish.
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