Buck Alan Winton v. the State of Texas

• Court: Court of Appeals of Texas
• Decided: March 30, 2023
• Docket: 01-20-00155-CR
• Status: Published

Opinion

Opinion issued March 30, 2023

In The

Court of Appeals For The

First District of Texas ———————————— NO. 01-20-00155-CR ——————————— BUCK ALAN WINTON, Appellant V. THE STATE OF TEXAS, Appellee

On Appeal from the 239th District Court Brazoria County, Texas Trial Court Case No. 85805-CR

MEMORANDUM OPINION

Appellant Buck Alan Winton filed a notice of appeal stating that he was

challenging the January 29, 2020 denial of his motion for new trial. Although a

reporter’s record was filed, no clerk’s record was filed. The trial court clerk advised this Court that no financial arrangements were made for the preparation and filing

of the clerk’s record.

On August 13, 2020, this Court issued an order abating the appeal and

remanding to the trial court for a hearing to determine whether appellant wished to

pursue his appeal, if retained counsel had abandoned the appeal, if appellant was

able to afford the costs of appeal or, if counsel had abandoned the appeal, to appoint

new counsel. This Court directed the trial court to file a supplemental clerk’s record

containing the trial court’s findings and a hearing record.

On August 31, 2020, appellant’s counsel filed a motion to dismiss the appeal,

claiming that appellant no longer wished to pursue the appeal. However, the motion

was not signed by appellant, as required. See TEX. R. APP. P. 42.2(a). Because the

motion did not comply with the rule, this Court denied the motion.

The trial court filed a supplemental clerk’s record on September 11, 2020, but

this record failed to contain the findings requested. No hearing record was filed.

This Court entered a second abatement order explaining that no clerk’s record had

been filed and that retained counsel had filed a motion contending that appellant no

longer wished to pursue his appeal. This Court again requested findings and a

hearing record. A supplemental clerk’s record was filed on January 28, 2022, but it

failed to include findings.

2 This Court entered a third abatement order on February 1, 2022 again

requesting findings. A hearing record and another supplemental clerk’s record were

filed. In the supplemental clerk’s record, the trial court included an excerpt from the

hearing record in which the trial court asked retained counsel if appellant no longer

desired to pursue his appeal and retained counsel stated that during her last

conversation with him, appellant clearly advised her that he no longer wanted to

pursue this appeal. Retained counsel also testified to attempts to contact appellant,

both by telephone and visiting his residence, but that these attempts were

unsuccessful. The trial court then stated on the record that it was making a finding

that appellant no longer wished to pursue this appeal.

Based on the trial court’s finding that appellant does not want to continue his

appeal, cannot be located, and has not cooperated with counsel by maintaining

contact with counsel, we conclude that good cause exists to suspend the operation

of Rule 42.2(a). See In re S.W.O., 230 S.W.3d 205, 205 (Tex. App.—Houston [14th

Dist.] 2006, no pet.) (suspending operation of Rule 42.2(a) and, based on evidence

at hearing that appellant no longer wanted to continue appeal, dismissed appeal); Ex

parte Salazar, Nos. 13-16-00452-CR and 13-16-00453-CR, 2017 WL 2200318, at

*1 (Tex. App.—Corpus Christi-Edinburgh Mar. 16, 2017, no pet.) (mem. op., not

designated for publication) (suspending operation of Rule 42.2(a) and dismissing

appeal based on trial court finding appellant no longer wished to pursue appeal).

3 Accordingly, we dismiss this appeal. Any pending motions are dismissed as

moot.

PER CURIAM Panel consists of Chief Justice Adams and Justices Kelly and Goodman.

Do not publish. TEX. R. APP. P. 47.2(b).