Cirilo Diaz, Jr. v. State

Opinion

NO. 07-11-0297-CR

IN THE COURT OF APPEALS

FOR THE SEVENTH DISTRICT OF TEXAS

AT AMARILLO

PANEL C

JANUARY 12, 2012

______________________________

CIRILO DIAZ, JR., APPELLANT

V.

THE STATE OF TEXAS, APPELLEE

_________________________________

FROM THE 242ND DISTRICT COURT OF HALE COUNTY;

NO. B17995-0904; HONORABLE ED SELF, JUDGE

_______________________________

Before QUINN, C.J., and HANCOCK and PIRTLE, JJ.

MEMORANDUM OPINION

In 2009, Appellant Cirilo Diaz, Jr., was convicted of burglary of a habitation1 and

sentenced to five years confinement and assessed a $750 fine. Punishment was

suspended in favor of five years community supervision. In 2011, at a hearing on the

State's motion to revoke, Appellant entered a plea of true to the State's allegations and

1 Tex. Penal Code Ann. § 30.02 (West 2011). the trial court found he had violated the terms and conditions of community supervision

and revoked his community supervision. The trial court assessed the original sentence.

Appellant perfected this appeal. The reporter's record has been filed.

By order of abatement dated October 13, 2011, this Court abated this appeal and

remanded the cause to the trial court to consider retained counsel's motion to withdraw

and whether Appellant was indigent and entitled to appointed counsel to prosecute this

appeal. The trial court held a hearing on October 27, 2011. The State and Appellant's

counsel were present but Appellant failed to appear. The trial court found that Appellant

was a fugitive, forfeited his appeal bond, ordered that a capias issue for his arrest and

raised the amount of a new bond to $100,000. Appellant's counsel's motion to withdraw

was not considered.

Counsel then filed an amended motion to withdraw in this Court. By order dated

November 29, 2011, this Court granted the motion after finding it complied with Rule 6.5

of the Texas Rules of Appellate Procedure. By that same order, Appellant was declared

a pro se litigant and ordered to certify to this Court by December 19, 2011, whether he

had requested preparation of the clerk's record and complied with Rule 35.3(a)(2) of the

Texas Rules of Appellate Procedure on arranging to pay for the record. Appellant was

admonished that failure to comply would result in dismissal of his appeal.

To date, Appellant has not responded to this Court's order and the clerk's record

from the revocation proceeding remains outstanding. Rule 37.3(b) of the Texas Rules

of Appellate Procedure authorizes dismissal of a criminal case for want of prosecution if

2 no clerk's record is filed due to Appellant's fault, provided the appellant is not entitled to

proceed without the payment of costs and he has been given a reasonable opportunity

to cure the omission before dismissal. Here, Appellant has not been declared unable to

pay costs since having retained counsel to pursue this appeal. Furthermore, he has

been given notice of his omission and a reasonable opportunity to cure. Given his

status as a fugitive and his failure to comply with a directive from this Court, we dismiss

this appeal. Tex. R. App. P. 37.3(b).

Patrick A. Pirtle Justice

Do not publish.