Troy Michael McMahon v. State of Texas

• Court: Court of Appeals of Texas
• Decided: June 12, 2002
• Docket: 04-01-00442-CR
• Status: Published

Opinion

No. 04-01-00442-CR

Troy Michael MCMAHON,

Appellant

v.

The STATE of Texas,

Appellee

From the County Criminal Court at Law No. 14, Harris County, Texas

Trial Court No. 1043939

Honorable Michael R. Fields, Judge Presiding

PER CURIAM

Sitting: Catherine Stone, Justice

Paul W. Green, Justice

Sandee Bryan Marion, Justice

Delivered and Filed: June 12, 2002

AFFIRMED

Appellant, Troy Michael McMahon, was convicted by a jury of failure to stop and give information. Appellant pled true to the allegations contained in an enhancement paragraph of the information, and the jury assessed punishment at confinement for 180 days in the Harris County jail and a fine of $2,000. The court imposed sentence on April 11, 2001. Appellant timely filed a notice of appeal on the same date.

The clerk's record was filed in this Court. However, no briefs have been filed. Appellant's brief was originally due on September 5, 2001. The court notified appellant's counsel, David H. Falk, of the deficiency. We received no written response, and on October 18, 2001, we ordered Falk to file appellant's brief no later than November 5, 2001. The brief was not filed. Therefore, on November 19, 2001, we abated this appeal and remanded the case to the trial court to conduct a hearing pursuant to Rule 38.8 (b)(2) of the Texas Rules of Appellate Procedure.

The trial court held a hearing on January 17, 2002. Mr. Falk and a representative of the State appeared; however, appellant did not. Mr. Falk and the trial court's court coordinator testified about their unsuccessful efforts to contact appellant. At the conclusion of the hearing, the trial court found: (1) Mr. Falk has been temporarily suspended from the practice of law and no longer represents appellant; (2) appellant no longer wishes to prosecute the appeal; and (3) appellant is not indigent. The court also noted that appellant served his underlying sentence prior to resolution of his appeal. The reporter's record of the hearing, including the trial court's oral findings, has been filed in this court. We reinstated the appeal on January 31, 2002, and ordered the appeal to be considered without an appellant's brief. The State elected to not file a brief.

Rule 38.8(b)(4) of the Texas Rules of Appellate Procedure provides, in pertinent part:

If the trial court has found that appellant no longer desires to prosecute the appeal, or that 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.

Tex. R. App. P. 38.8(b)(4). The trial court made appropriate findings that allow this court to consider the appeal without briefs. Accordingly, only the record is presented for review. We have reviewed

the record for fundamental error and find none. See Lott v. State, 874 S.W.2d 687, 688 (Tex.Crim.App.1994).

We affirm the judgment of the trial court.

DO NOT PUBLISH