Order entered October 11, 2019




                                              In The
                                  Court of Appeals
                           Fifth District of Texas at Dallas
                                      No. 05-19-00522-CR

                           JAMES GAVIN OVERLOON, Appellant

                                                V.

                              THE STATE OF TEXAS, Appellee

                       On Appeal from the 291st Judicial District Court
                                    Dallas County, Texas
                            Trial Court Cause No. F18-00355-U

                                            ORDER
       Before the Court is the October 9, 2019 motion for abatement for a hearing regarding

appellant’s desire to appeal. The reporter’s record was due in this appeal on August 10, 2019.

On August 14, 2019, the Clerk of the Court notified Official Court Reporter Sasha Brooks of the

overdue record and directed her to file the record within thirty days. Brooks did not file the

record as directed. On October 7, 2019, the Court entered an order requiring Brooks to file the

complete reporter’s record by October 25, 2019.

       On October 8, 2019, Brooks filed a letter with the Court stating that she had been

informed by the trial court, trial counsel, and appellate counsel that appellant no longer wished to

appeal. After receiving Brooks’s letter, the Clerk of the Court issued a letter requesting that
appellate counsel inform the Court within ten days of the status of the appeal. Appellate counsel

responded with the current motion for abatement.

         In the motion for abatement, appellate counsel reports he has had difficulty scheduling a

meeting with appellant. Appellate counsel reports that he conferred with appellant in person on

May 1, 2019 and in writing on May 7, 2019. Appellant failed to keep an August 23, 2019

appointment with appellate counsel. On August 26, 2019, appellant and appellate counsel

conferred and, according to appellate counsel’s notes, appellant agreed to visit appellate

counsel’s office “on August 27, 2019, subject to confirmation, or in the alternative on a later

date.” Appellate counsel’s notes further reflect that on September 4, 2019, appellant arrived at

appellate counsel’s office, but was informed by the receptionist, perhaps erroneously, that

appellate counsel was in court. On October 3, 2019, appellant and appellate counsel spoke by

telephone and agreed to meet on October 4, 2019. Appellant did not show for the October 4,

2019 meeting, which was reset to October 7, 2019. Appellant also did not appear for the October

7, 2019 meeting. According to appellate counsel, appellant has stated that “he will follow up

soon.”

         We do not have authority to dismiss a pending criminal appeal unless the appellant either

files a motion to dismiss the appeal or escapes from custody. See TEX. R. APP. P. 42.2(a), 42.4.

When an appellant abandons an appeal, we may submit the appeal and consider it upon the

existing record. See Sutherland v. State, 658 S.W.2d 169, 170 (Tex. Crim. App. 1983); Scotka v.

State, 856 S.W.2d 790, 791 n. 1 (Tex. App.—San Antonio 1993, no pet.); see also Turner v.

State, No. 05-10-00182-CR, 2011 WL 522932, at *1 (Tex. App.—Dallas Feb. 16, 2011, no pet.)

(not designated for publication).
       From the information appellate counsel presents, we cannot conclude there is a sufficient

question of appellant’s desire to pursue the appeal to justify an abatement. While appellant has

missed several meetings, he has appeared in appellate counsel’s office as recently as September

4, 2019, has spoken with appellate counsel as recently as October 3, 2019, and has scheduled

meetings with appellate counsel as recently as October 7, 2019. Appellate counsel has not

reported in the motion any statements from appellant suggesting he does not want to proceed

with the appeal. Appellate Counsel has appellant’s current address for purposes of contact.

       Accordingly, we DENY the motion to abate without prejudice to refiling it should further

developments warrant.

       Because the court reporter has received conflicting information regarding whether she

should prepare the record, we ORDER court reporter Sasha Brooks to file the reporter’s record

and EXTEND the time to file the reporter’s record until November 25, 2019.

       We DIRECT the Clerk of the Court to transmit a copy of this order, by electronic

transmission to Official Court Reporter Sasha Brooks and to counsel for the parties.




                                                    /s/     ROBERT D. BURNS, III
                                                            CHIEF JUSTICE
