Michael Ray Cuellar v. State

Opinion

NUMBER 13-09-00063-CR

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI - EDINBURG ____________________________________________________________

MICHAEL RAY CUELLAR, Appellant,

v.

THE STATE OF TEXAS, Appellee. ____________________________________________________________

On appeal from the 24th District Court of DeWitt County, Texas. ____________________________________________________________

MEMORANDUM OPINION

Before Justices Rodriguez, Garza, and Benavides Memorandum Opinion Per Curiam

Appellant, Michael Ray Cuellar, was convicted of driving while intoxicated. On June

20, 2008, appellant filed a notice of appeal by and through his attorney. The appellant

failed to file a designation and make arrangement for preparation of the clerk’s record. On

October 1, 2009, this Court abated the appeal and ordered the trial court to determine

whether appellant desired to prosecute this appeal. The trial court held a hearing on October 22, 2009. Counsel for appellant appeared,

but appellant did not appear because he was out of state. The trial court found that

appellant did wish to prosecute the appeal and that no brief had been filed because

appellant had only recently made financial arrangements with counsel. The trial court

granted appellant’s request to file an affidavit of indigence within a week of the hearing and

recommended that an extension of the due date of the appellate record be ordered to

January 29, 2010, assuming a finding of indigence. Upon receiving the trial court’s findings

and conclusions, this Court reinstated the case.

On December 14, 2009, counsel sent a letter to the Court indicating that he had

mailed the affidavit of indigence for signature to appellant in North Dakota on more than

one occasion and it had not been returned. Counsel had attempted to contact appellant,

but his phone numbers had been changed or disconnected.

On December 18, 2009, the trial court supplemented its findings and conclusions,

stating that an indigence application had never been received and recommended that the

appeal be dismissed because appellant and counsel have effectively abandoned the

appeal.

Based upon the recommendations of the trial court that appellant has abandoned

his appeal, we conclude that good cause exists to suspend the operation of Rule 42.2(a)

in this case. See TEX . R. APP. P. 2. Accordingly, we dismiss the appeal.

PER CURIAM

Do not publish.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

Delivered and filed the 21st day of January, 2010.