Troy Lee Boiser, Jr. v. the State of Texas

• Court: Court of Appeals of Texas
• Decided: August 19, 2021
• Docket: 01-19-00911-CR
• Status: Published

Opinion

Opinion issued August 19, 2021

In The

Court of Appeals For The

First District of Texas ———————————— NO. 01-19-00911-CR ——————————— TROY LEE BOISER, JR., Appellant V. THE STATE OF TEXAS, Appellee

On Appeal from the County Court at Law No. 2 Fort Bend County, Texas Trial Court Case No. 18-CCR-200843

MEMORANDUM OPINION

A jury found appellant, Troy Lee Boiser, Jr., guilty of the misdemeanor

offense of driving while intoxicated.1 The trial court, pursuant to Boiser’s post-

verdict agreement with the State, assessed Boiser’s punishment at confinement for

1 See TEX. PENAL CODE ANN. § 49.04. one hundred and eighty days and a fine of $700. The trial court then suspended

Boiser’s sentence and placed Boiser on community supervision for a period of

twelve months. Boiser filed a notice of appeal.

Boiser’s brief was initially due to be filed with this Court on or before

December 7, 2020. See TEX. R. APP. P. 38.6(a). On motion by Boiser, the deadline

for filing his brief was extended to March 8, 2021. In our order extending Boiser’s

deadline to file his brief to March 8, 2021, we advised Boiser that no further

extensions would be considered, and that failure to file a brief by the extended

deadline would result in the appeal being abated for the trial court to hold a hearing

to make certain findings regarding the appeal. See TEX. R. APP. P. 38.8(b)(2), (3).

Boiser failed to timely file his brief. On March 10, 2021, Boiser filed a second

motion for extension of time to file his brief. In the motion, Boiser’s counsel stated

that she had “attempted to contact [Boiser] on numerous occasions unsuccessfully,”

and as such, had “been unable to discuss the appeal” with Boiser, or even determine

whether Boiser wished to “continue with the appeal” or “abandon the appeal.”

On March 16, 2021, we issued an order denying Boiser’s second motion for

extension of the time to file his brief and abated the appeal for the trial court to hold

a hearing to determine, among other things, whether Boiser wished to prosecute his

appeal. The trial court held the abatement hearing on March 31, 2021, and a

2 supplemental reporter’s record containing a transcript of the hearing was filed with

this Court on July 20, 2021.

Boiser failed to appear for the March 31, 2021 abatement hearing. However,

Boiser’s counsel and the State were present.2 During the abatement hearing, the trial

court noted that the case was remanded to make a determination regarding whether

Boiser “wishe[d] to prosecute this appeal.” Boiser’s counsel represented that,

despite her extensive efforts to contact Boiser, he had failed to communicate with

counsel, leading her to conclude Boiser no longer wished to prosecute the appeal.

The trial court then directed questioning at Boiser’s counsel to determine the

specific efforts counsel made to “communicate with [Boiser] to find out if he wants

to pursue this appeal.” Counsel detailed her numerous and extensive efforts to

contact Boiser, including several attempts to contact Boiser via telephone, and her

inability to leave a voice mail because the voice mail box was full. Counsel further

represented that she contacted Boiser’s appointed trial counsel to ensure she had the

correct telephone number for Boiser, which was confirmed by trial counsel. Counsel

then stated that she contacted Boiser’s community supervision officer, who stated

that Boiser’s “probation was abated for some reason,” so the community supervision

officer had not spoken with Boiser. However, the community supervision officer

2 All parties attended the hearing by video teleconference in accordance with the applicable Texas Supreme Court’s Emergency Order Regarding the Covid-19 State of Disaster.

3 did provide counsel with an e-mail address for Boiser. Counsel then attempted to

contact Boiser via e-mail but received no response.

Counsel also stated that she made several attempts to reach Boiser via letter,

including sending correspondence certified mail, return receipt requested. However,

Boiser “did not respond to any letter, any phone call, any e-mail.” Counsel further

stated that she performed public record searches to potentially identify previously

unknown contact information for Boiser. From these efforts, counsel identified an

individual who was potentially Boiser’s father, and attempted to contact that

individual in an effort to reach Boiser but again received no response. Counsel also

attempted to contact Boiser’s sister, brother, girlfriend, and friend. Counsel was

either unable to reach or received no response from any of these individuals.

Based on counsel’s testimony, the trial court inquired whether it was counsel’s

opinion that Boiser “d[id] not wish to prosecute this appeal,” to which counsel

responded “[y]es.” The trial court then made a “finding that [Boiser] ha[d]

abandoned [the] appeal and . . . d[id] not wish to prosecute this appeal which caused

the failure to file the brief.”

The voluntary dismissal of a criminal appeal is governed by the Texas Rule

of Appellate Procedure 42.2, which requires a motion to dismiss, signed by an

appellant and his attorney, be filed with the appellate court. TEX. R. APP. P. 42.2(a).

Although no written motion has been filed in compliance with rule 42.2(a), based on

4 the record presented to this Court, and the finding of the trial court from the

abatement hearing, we now conclude that good cause exists to suspend the operation

of rule 42.2 in this appeal. TEX. R. APP. P. 2, 42; Conners v. State, 966 S.W.2d 108,

110–11 (Tex. App.—Houston [1st Dist.] 1998, pet. ref’d); see, e.g., Jackson v. State,

No. 13-17-00252-CR, 2019 WL 1716796, at *1 (Tex. App.—Corpus Christi–

Edinburg Apr. 18, 2019, no pet.) (mem. op., not designated for publication)

(suspension of rule 42.2 proper where trial court concluded appellant abandoned by

failure to appear for abatement hearing); Truong v. State, No. 01-17-00343-CR,

2018 WL 1630177, at *1 (Tex. App.—Houston [1st Dist.] Apr. 5, 2018, no pet.)

(mem. op., not designated for publication) (suspending operation of rule 42.2 and

construing abatement record as appellant’s motion to dismiss appeal). We have not

issued a decision in the appeal. See TEX. R. APP. P. 42.2(b).

Accordingly, based on the record before us, we reinstate and dismiss the

appeal. See TEX. R. APP. P. 43.2(f). We dismiss all other pending motions as moot.

PER CURIAM

Panel consists of Justices Kelly, Guerra, and Farris.

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