      TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN


                                       NO. 03-08-00254-CR



                                  Antione Whittman, Appellant

                                                  v.

                                   The State of Texas, Appellee


      FROM THE DISTRICT COURT OF BELL COUNTY, 264TH JUDICIAL DISTRICT
          NO. 61210, HONORABLE MARTHA J. TRUDO, JUDGE PRESIDING



                             MEMORANDUM OPINION


               We withdraw our prior opinion and judgment dated February 6, 2009, and substitute

the following opinion and judgment in their place.

               Antione Whittman was convicted of possession with intent to deliver a controlled

substance. His ten-year prison sentence was probated for ten years. No affidavit of indigence for

appeal appears in the clerk’s record, and the trial court noted in a March 7, 2008 docket entry that it

found appellant was not indigent and told him that he did not qualify for appointed counsel.

Whittman filed a notice of appeal pro se on April 17, 2008. A clerk’s record was filed, but no

reporter’s record was filed by the deadline to file records in this case—June 9, 2008—or since. The

reporter informed this Court that Whittman had not paid or made arrangements to pay for the record.

By order dated October 15, 2008, this Court set a deadline of November 7, 2008, for Whittman

to pay or make arrangements to pay for the reporter’s record. If he failed to get a reporter’s record
prepared, this appeal would be submitted on the clerk’s record and his brief would be due

December 7, 2008. See Tex. R. App. P. 37.3(c)(1). The original notice was returned to sender with

a forwarding address. A notice sent to the new address was also returned to sender, this time without

a forwarding address. Whittman has not apprised this Court of his current address, has not informed

this Court that he has paid or made arrangements to pay for the reporter’s record, and has not filed

a brief based on the clerk’s record.

               We ordinarily would require the trial court to hold a hearing to determine whether

the appellant wishes to prosecute this appeal. See Tex. R. App. P. 38.8(b)(2). Because our notices

to Whittman have been returned as undeliverable and he has not apprised us of his current address,

we believe that ordering such a hearing would be futile. We deem from Whittman’s failure to pay

for the record, file a brief, or apprise us of his address that he no longer wishes to prosecute this

appeal. See Tex. R. App. P. 38.8(b)(4). We have reviewed the clerk’s record and find no error

requiring reversal.

               Affirmed.




                                              G. Alan Waldrop, Justice

Before Justices Patterson, Pemberton and Waldrop

Affirmed

Filed: April 2, 2009

Do Not Publish



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