Alberto Aguirre Rendon v. State

• Court: Court of Appeals of Texas
• Decided: April 20, 2016
• Docket: 04-15-00662-CR
• Status: Published

Opinion

Fourth Court of Appeals San Antonio, Texas MEMORANDUM OPINION No. 04-15-00662-CR

Alberto Aguirre RENDON, Appellant

v.

The STATE of Texas, Appellee

From the County Court at Law, Kerr County, Texas Trial Court No. CR13-1227 Honorable Susan Harris, Judge Presiding

PER CURIAM

Sitting: Patricia O. Alvarez, Justice Luz Elena D. Chapa, Justice Jason Pulliam, Justice

Delivered and Filed: April 20, 2016

DISMISSED

In this appeal, initially, Appellant Alberto Aguirre Rendon had court-appointed counsel.

Later, after the trial court determined Appellant was not indigent, the trial court discharged

appointed counsel. Appointed counsel advised Appellant that his brief was due on February 22,

2016. See TEX. R. APP. P. 6.5(c). After the deadline to file the brief passed and Appellant did not

file a motion for extension of time or a brief, on February 29, 2016, we ordered Appellant to file

either his brief or a motion to dismiss this appeal not later than March 10, 2016. We advised 04-15-00662-CR

Appellant that if no brief or motion was filed by that date, we would abate this appeal and remand

the cause to the trial court for an abandonment hearing. See TEX. R. APP. P. 38.8(b)(2).

On March 14, 2016, after Appellant had not filed a response to our February 29, 2016

order, we abated this appeal and remanded the cause to the trial court. See TEX. R. APP. P. 38.8(b);

Samaniego v. State, 952 S.W.2d 50, 52–53 (Tex. App.—San Antonio 1997, no pet.). We ordered

the trial court to conduct a hearing to answer the following questions:

(1) Does Appellant desire to prosecute his appeal? (2) Is Appellant now indigent? If Appellant’s circumstances have changed such that Appellant is now indigent, the trial court shall take such measures as may be necessary to assure the effective assistance of counsel, which may include the appointment of counsel. If Appellant is not indigent, the trial court need not appoint counsel for appeal. (3) Has Appellant abandoned the appeal?

On March 23, 2016, as ordered, the trial court held an abandonment hearing. After

Appellant was sworn, the trial court read this court’s February 29, 2016 order in its entirety to

Appellant. Appellant asked the court to determine whether he was indigent for purposes of appeal,

and the trial court again found he was not. The trial court asked Appellant if he wished to prosecute

his appeal; Appellant answered no. The trial court asked Appellant if he was abandoning his

appeal; Appellant answered yes. The trial court found that Appellant did not desire to prosecute

his appeal, and Appellant has abandoned this appeal.

We reinstate the appeal on this court’s docket. We construe Appellant’s sworn statement

in open court that he does not desire to prosecute this appeal as an oral motion to dismiss this

appeal. Appellant’s motion is granted; this appeal is dismissed.

DO NOT PUBLISH

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