Dale Morris Padgett v. The State of Texas--Appeal from County Court at Law No 1 of McLennan County

IN THE

TENTH COURT OF APPEALS

No. 10-95-088-CR

DALE MORRIS PADGETT,

Appellant

v.

THE STATE OF TEXAS,

Appellee

From the County Court At Law

McLennan County, Texas

Trial Court # 942393 CR1

MEMORANDUM OPINION

A jury found Dale Padgett guilty of misdemeanor driving while intoxicated and the court assessed punishment of 180 days' confinement in the McLennan County jail, probated for two years, and a $2,000 fine, of which $1,500 was also probated. Tex. Penal Code Ann. 49.04 (Vernon 1994). He appealed his conviction to this court. We conclude that Padgett's failure to appear at a hearing convened by the trial court at our order constitutes abandonment of the appeal and affirm his conviction on the transcript.

Padgett filed his notice of appeal on April 26, 1995. Although the transcript was filed on May 15, no statement of facts followed. On October 25, our clerk notified him that the statement of facts had not been timely filed and that, absent a motion for an extension of time to file the statement of facts, we would consider the appeal on the transcript alone. Tex. R. App. P. 53(m). He was given thirty days to file a brief. After he failed to file a brief, our clerk sent him a letter, dated November 29, requesting that a brief be filed within ten days. Id. 74(l)(2). No brief was filed. Because no brief was filed, we abated this cause and instructed the trial court to conduct a hearing to determine why a statement of facts has not been filed and whether Padgett desired to proceed with the appeal. Id. 53(m), 74(l)(2), 83. The court set the hearing and attempted to notify Padgett. However, Padgett failed to appear at the hearing. After the hearing, we again ordered Padgett to file a brief, but we have received no response from him.

Padgett has failed to respond to our notices indicating that the appeal would be submitted on the transcript and twice requesting that he file his brief. He has failed to appear at a hearing called by the trial court on our order. He has failed to respond to our order following that hearing requiring him to file a brief. Therefore, we conclude that he has abandoned his appeal. Meza v. State, 742 S.W.2d 708, 708 (Tex. App. Corpus Christi 1987, no pet.).

As in Meza, we have examined the transcript for fundamental error which should be reviewed in the interest of justice. Id.; see also Lott v. State, 874 S.W.2d 687, 688 (Tex. Crim. App. 1994). Finding none, we affirm the judgment.

PER CURIAM

Before Chief Justice Davis,

Justice Cummings, and

Justice Vance

Affirmed

Opinion delivered and filed June 26, 1996

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