John Arnold McDowell v. The State of Texas--Appeal from County Court of Freestone County

NO. 10-90-060-CR

IN THE

COURT OF APPEALS

FOR THE

TENTH DISTRICT OF TEXAS

AT WACO

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JOHN ARNOLD McDOWELL,

Appellant

v.

THE STATE OF TEXAS,

Appellee

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From County Court

Freestone County, Texas

Trial Court #14,935

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O P I N I O N

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This is an appeal from a conviction by a jury on January 10, 1990, of the offense of driving while intoxicated. The jury assessed punishment at seventy-two hours confinement in the Freestone County jail and a $1,000 fine. The County Court of Freestone County imposed sentence on January 10. Appellant filed a motion for new trial on February 7. The record became due in this court on May 10, 120 days after the date sentence was imposed in open court unless a motion for an extension of time was filed and granted. See TEX. R. APP. P. 54(b),(c). The transcript was received and filed in this court on April 19.

On September 6, retained appellate counsel was notified by the clerk of this court that no statement of facts had been received and that Appellant's brief was due. As of October 4, no statement of facts or motion for an extension of time in which to file same had been filed. Neither party had filed its brief. By order of this court dated October 4, the appeal was abated and the trial court was instructed to give notice and to conduct a hearing to determine whether Appellant desired to pursue the appeal. Id. at 74(l)(2)

On October 30, the trial court conducted the hearing, and its findings of fact and conclusions of law were filed in this court on November 26. Appellant did not appear at the hearing, though the record reflects appellate counsel was aware Appellant knew of the hearing date.

The trial court found, based upon the testimony of appellate counsel, who also acted as Appellant's retained attorney at trial, that Appellant had refused to pay for a statement of facts or take any other action to assist counsel in pursuing the appeal despite the receipt of repeated certified letters requesting that he act. The court further found that appellate counsel does not know the whereabouts of appellant and understands that the appeal would either be submitted on the transcript alone or dismissed on the State's motion. The trial court then concluded that appellate counsel is unable to obtain a written motion signed by Appellant stating he no longer wishes to pursue the appeal, and that Appellant's failure to pay for a statement of facts and inaction indicate a desire not to pursue the appeal. Appellate counsel filed an affidavit in this court on October 30 attesting to the facts found by the trial court.

The record supports the findings and conclusions of the trial court by more than a scintilla of probative evidence. The State's motion filed September 12 that the appeal be dismissed for want of prosecution is granted and the appeal is dismissed. Id.

PER CURIAM

Before Chief Justice Thomas, Justice Cummings

and Justice Vance

Dismissed

Opinion delivered and filed January 24, 1991

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