Opinion issued July 16, 2009

In The

Court of Appeals

For The

First District of Texas

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NO. 01-08-00245-CR

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FEDERICO ROLAND GARZA, JR., Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from County Criminal Court at Law No. 3

Harris County, Texas

Trial Court Cause No. 1431698

MEMORANDUM OPINION

Appellant, Federico Roland Garza, Jr., was convicted by a jury of the offense of cruelly to animals and sentenced to 180 days probated for 18 months. Appellant filed a timely notice of appeal. Appellant was released on bond pending appeal.

The clerk's record was filed on April 15, 2008. Subsequently, the court reporter, Clarisa Ramirez, informed this Court that appellant had not made arrangements to pay for the reporter's record. Therefore, we abated the appeal and remanded the case to the trial court for a hearing. See Tex. R. App. P. 38.8(b). Our order of abatement 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 on June 1, 2009. The record of those proceedings has been filed in this Court. Accordingly, we order the appeal reinstated.

Appellant did not appear at the hearing and the trial judge found that "Mr. Garza has no intention of prosecuting this appeal." In addition, the trial court has filed with this Court written findings of fact and conclusions of law that state:

On June 1, 2009, the trial court called the case. The State of Texas appeared by an Assistant Harris County District Attorney. Although notified in writing sent to his last known address of the date, time and location of the hearing, the appellant, did not appear.

Appellant, represented by counsel, was found guilty of cruelty to animals and granted community supervision.

Appellant filed a notice of appeal on the last permitted [date] for such filing by the rules of appellate procedure. At the time he advised the court he would be hiring attorney David Cunningham to represent him on appeal.

Appellant's trial counsel, Mr. Chris Downey, informed the court that he understood Mr. Cunningham would be counsel on appeal.

Mr. Cunningham has never contacted the court, or otherwise associated himself with this case.

Appellant has never contacted the official court reporter to determine the cost of the reporter's record.

Appellant has never contacted the court to request an indigency hearing for purposes of appointment of counsel or a reporter's record.

The trial court concludes that appellant has abandoned his appeal. The trial court recommends that he Court of Appeals dismiss the appeal.

As of this date, no reporter's record or brief has been filed in this Court. 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 the trial court or this Court informed of his whereabouts, and that appellant no longer desires to prosecute the appeal. Accordingly, we consider this appeal without briefs.

There is nothing but the Clerk's record presented for review. 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 CURIAM

Panel consists of Justices Jennings, Alcala and Higley.

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