in the Interest of A.D.G., a Child

• Court: Court of Appeals of Texas
• Decided: May 30, 2012
• Docket: 07-12-00021-CV
• Status: Published

Opinion

NO. 07-12-0109-CR

IN THE COURT OF APPEALS

FOR THE SEVENTH DISTRICT OF TEXAS

AT AMARILLO

PANEL B

MAY 30, 2012 _____________________________

SILVERIO DELGADO-GUTIERREZ,

Appellant v.

THE STATE OF TEXAS,

Appellee _____________________________

FROM THE 242nd DISTRICT COURT OF HALE COUNTY;

NO. B18797-1104; HONORABLE ED SELF, PRESIDING _____________________________

Opinion _____________________________

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

Silverio Delgado-Gutierrez (appellant) filed a notice of appeal from his conviction

for arson. Subsequently, we received requests for extensions of time from both the

court reporter and the clerk to file their respective records. The requests were founded

upon appellant’s failure to request preparation of the records or his failure to pay or

make arrangements to pay for the records. Furthermore, counsel for appellant filed a

motion to withdraw on April 26, 2012. He informed us that the location of his client was

unknown and that his diligent efforts to find him were unsuccessful. These circumstances led the court to abate the appeal to the trial court. The latter was then

asked to determine whether appellant 1) desired to prosecute this appeal, 2) was

indigent and, therefore, entitled to a free record and appointed counsel on appeal, and

3) had absconded from the jurisdiction of the state. Though the clerk’s record has been

filed with this court, the reporter’s record remains outstanding.

Upon our abatement, the trial court convened a hearing in attempt to garner

information needed to address our inquiries. Thereafter, it filed its findings. They

consist of the following: 1) by written order, appellant was ordered to appear in person

for a hearing scheduled on May 18, 2012, to determine whether he wished to pursue his

appeal, 2) counsel for appellant, David Martinez, received a copy of the order setting a

hearing, 3) appellant had received community supervision as punishment for his

conviction of arson and had been released to the Hale County Community Supervision

and Corrections Department, 4) counsel for appellant timely sent written notice to

appellant of the hearing scheduled May 18th, 5) the trial court timely sent written notice

to appellant at his last known address, 6) the Hale County Community Supervision and

Corrections Department unsuccessfully attempted to contact appellant regarding the

need for his presence at the hearing, 7) appellant’s current whereabouts are unknown

to the probation department, 8) on the day of the hearing, appellant failed to appear, 9)

the State and appellant’s attorney did appear at the hearing, 10) at this time, appellant

is a fugitive whose whereabouts are unknown, and 11) at this time, it is unknown to the

court whether appellant wishes to pursue his appeal.

To date, neither the reporter’s record nor any indication that appellant

endeavored to secure a reporter’s record has been received by this court. Nor do we

2 have any indication, aside from his notice of appeal, that he desires to continue the

proceeding. Nor do we have any indication that anyone, other than appellant, is

responsible for the inaction. Yet, rather than dismiss for want of prosecution, we opt to

follow a procedure we adopted in Vieira v. State, No. 07-95-0072-CR (Tex. App.–

Amarillo February 22, 1996) (not designated for publication) and submit the case on the

clerk’s record and without briefs. TEX. R. APP. P. 38.8(b); see Horvath v. State, 884

S.W.2d 789, 789-90 (Tex. App.–Fort Worth 1994, no pet.) (acknowledging this as an

appropriate course of action in circumstances akin to those at bar).

We have reviewed the entire clerk’s record and found no reversible error. The

indictment, jury charge and judgment appear valid and satisfactory. Pretrial motions

were filed, heard and ruled on. The State timely filed appropriate notices and

responses to discovery. Additionally, the punishment assessed was within the range

applicable to the type of felony for which appellant was convicted, that being a felony of

the first degree.1 Furthermore, the trial court found, in its judgment, that appellant was

able to pay attorney’s fees and ordered him to pay attorney’s fees in the amount of

$750.00.

Accordingly, we affirm the judgment of the trial court.

Brian Quinn Chief Justice

Publish.

1 Punishment assessed by the jury was five years in prison and no fine. However, his sentence was probated for a period of ten years.