Francisco Ayala v. State

• Court: Court of Appeals of Texas
• Decided: January 16, 2015
• Docket: 01-13-00393-CR
• Status: Published

Opinion

Opinion issued January 13, 2015

In The

Court of Appeals For The

First District of Texas ———————————— NO. 01-13-00393-CR ——————————— FRANCISCO AYALA, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the County Criminal Court at Law No. 9 Harris County, Texas Trial Court Case No. 1820869

MEMORANDUM OPINION

A jury found appellant, Franciso Ayala, guilty of the offense of cruelty to

animals 1 and assessed his punishment at confinement for 190 days. Appellant’s

1 See TEX. PENAL CODE ANN. § 42.092 (Vernon 2011). retained trial counsel filed a notice of appeal on his behalf. After the clerk’s record

was filed, this Court notified appellant that the trial court reporter had informed the

Court that appellant had not paid, or made arrangements to pay, for the reporter’s

record and unless appellant caused the reporter’s record to be filed, or provided

proof that he was entitled to proceed without payment of costs, the Court would

consider the appeal without a reporter’s record. See TEX. R. APP. P. 37.3(c).

After appellant did not respond, the Court ordered that the appeal would be

submitted for a decision without a reporter’s record and appellant to file a brief no

later than January 2, 2014. See TEX. R. APP. P. 38.6(a), 37.3(c). On February 11,

2014, the Court notified appellant that a brief had not been filed and, unless he

filed a brief within ten days, a hearing would be required. See TEX. R. APP. P.

38.8(b)(2), (3).

On May 20, 2014, no brief having been filed, the Court abated the appeal

and remanded the case to the trial court for a determination of whether appellant

desired to prosecute his appeal, whether retained counsel had abandoned the

appeal, and, if so, whether appellant was indigent and should have counsel

appointed. See id. A supplemental record was then filed, showing that, after a

hearing, at which appellant’s retained counsel appeared, the trial court found that

appellant has served his sentence in the underlying case, has been released from

2 custody, and his whereabouts are unknown. The trial court concluded that

appellant has abandoned this appeal.

An appellant’s failure to timely file a brief does not authorize dismissal of

the appeal. See TEX. R. APP. P. 38.8(b)(1). Rather, when, as here, a trial court has

found that an appellant no longer desires to prosecute his appeal, or that the

appellant is not indigent but has not made the necessary arrangements for filing a

brief, the appellate court may consider the appeal without briefs, as justice may

require. See TEX. R. APP. P. 38.8(b)(4).

When we determine an appeal in a criminal case without the benefit of an

appellant’s brief, our review of the record is limited to fundamental error. See Lott

v. State, 874 S.W.2d 687, 688 (Tex. Crim. App. 1994); see also Saldano v. State,

70 S.W.3d 873, 887–88 (Tex. Crim. App. 2002). Here, our examination of the trial

court record reveals no fundamental error.

Accordingly, we affirm the judgment of the trial court.

Terry Jennings Justice

Panel consists of Justices Jennings, Bland, and Massengale.

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