






Becker v. State






COURT OF APPEALS
EIGHTH DISTRICT OF TEXAS
EL PASO, TEXAS

)
CARMEN BENAVENTE,                                  )                     No. 08-04-00287-CV
)
                                    Appellant,                        )                             Appeal from
)
v.                                                                          )                        65th District Court
)
RICARDO BENAVENTE, JR.,                          )                   of El Paso County, Texas
)
                                    Appellee.                          )                        (TC# 2002CM1586)

MEMORANDUM OPINION

            This appeal is before the court on its own motion for determination of whether it should be
dismissed for want of prosecution.  Finding that the clerk’s record has not been filed due to the fault
of Appellant and that Appellant has failed to respond to our inquiry letter, we dismiss the appeal. 
            The clerk’s record and reporter’s record were due to be filed on January 14, 2005.  The court
reporter informed the Court on January 14, 2005 that Appellant did not file a designation of record
or make financial arrangements for the payment of the record.  That same day, we notified Appellant
of her failure to designate the record or make financial arrangements and directed her to immediately
notify us regarding the arrangements she had made or intended to make.  We also directed Appellant
to inform the Court by January 24, 2005 if she would not be requesting a reporter’s record as part
of the appeal.  She did not respond to our and the court reporter again informed the Court on January
24, 2005, that Appellant had not contacted her or made arrangements to pay for the record.  On
January 24, 2005, the we notified Appellant that she had not made financial arrangements to pay for
the reporter’s record and she had failed to respond to our inquiry.  Our letter further informed
Appellant that the Clerk’s record had not been filed.  Our letter gave Appellant notice that the appeal
would be dismissed for want of prosecution unless she contacted the Court within ten days and
provided a reason why the appeal should be continued.  See Tex.R.App.P. 37.3.  Appellant again did
not respond and the clerk’s record has not been filed.  The District Clerk has since informed the
Court that Appellant has not made arrangements to pay for the clerk’s record.
            Rule 37.3(b) provides as follows:
If the trial court clerk failed to file the clerk’s record because the appellant failed to
pay or make arrangements to pay the clerk’s fee for preparing the clerk’s record, the
appellate court may--on a party’s motion or it’s own initiative--dismiss the appeal for
want of prosecution unless the appellant was entitled to proceed without payment of
costs.  The court must give the appellant a reasonable opportunity to cure before
dismissal.

Tex.R.App.P. 37.3(b). 
            It is undisputed that Appellant has failed to make financial arrangements to pay for the clerk’s
record and the clerk’s record has not been filed.  Further, Appellant has not complied with our
notices requiring a response.  See Tex.R.App.P. 42.3(c)(authorizing appellate court to dismiss appeal
where the appellant fails to comply with a notice from the clerk requiring a response or other action
within a specified time).  Pursuant to Rules 37.3(b) and 42.3(c), we dismiss the appeal.

April 28, 2005                                                             
                                                                                    ANN CRAWFORD McCLURE, Justice

Before Barajas, C.J., McClure, and Chew, JJ.
