Toni Elaine Berry v. State

Opinion

In The

Court of Appeals Ninth District of Texas at Beaumont ____________________ NO. 09-12-00501-CR ____________________

TONI ELAINE BERRY, Appellant

V.

THE STATE OF TEXAS, Appellee _______________________________________________________ ______________

On Appeal from the County Court at Law No. 4 Montgomery County, Texas Trial Cause No. 11-268800 ________________________________________________________ _____________

MEMORANDUM OPINION

After a jury found Toni Elaine Berry guilty of driving while intoxicated, the

trial court sentenced Berry to 180 days in jail and assessed a $500 fine, then

suspended the imposition of the sentence and placed Berry on community

supervision for one year. See Tex. Penal Code Ann. § 49.04 (West Supp. 2012).

Represented by retained counsel and without claiming indigence, Berry filed a

notice of appeal. After counsel failed to respond to our notice that the brief was

1 overdue, we abated the appeal and remanded the case to the trial court for a

hearing. See Tex. R. App. P. 38.8(b)(2), (3).

The trial court held the hearing. Retained counsel appeared for the hearing

and described his repeated unsuccessful attempts to contact Berry by telephone and

e-mail. Berry failed to personally appear at the hearing. Notices from the clerk sent

by regular and certified mail to Berry’s last known address had been returned

undelivered. Counsel informed the court that Berry agreed to pay for the reporter’s

record but she failed to do so. The trial court found that reasonable attempts have

been made to notify Berry of the hearing, and that Berry no longer desires to

pursue her appeal.

Berry’s failure to file a brief constitutes abandonment of the appeal. See

Parker v. State, 69 S.W.3d 677, 678 (Tex. App.—Waco 2002, no pet.). Berry has

not claimed indigence and has failed to communicate with counsel or make

arrangements for filing a brief. Accordingly, we exercise our authority to consider

this appeal without briefs. See Tex. R. App. P. 38.8(b)(4). We review the clerk’s

record in the interest of justice. Lott v. State, 874 S.W.2d 687, 688 (Tex. Crim.

App. 1994); see Tex. R. App. P. 37.3(c). A review of the limited record presented

does not justify reversal on unassigned error. The trial court’s judgment is

affirmed.

2 AFFIRMED.

________________________________ DAVID GAULTNEY Justice

Opinion Delivered June 26, 2013 Do Not Publish

Before Gaultney, Kreger, and Horton, JJ.