      TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN


                                        NO. 03-14-00204-CR



                                     State of Texas, Appellant

                                                   v.

                                Robert Andrew Johnson, Appellee


         FROM THE COUNTY COURT AT LAW NO. 2 OF WILLIAMSON COUNTY
         NO. 12-09862-2, HONORABLE TIMOTHY L. WRIGHT, JUDGE PRESIDING



                             MEMORANDUM OPINION


                After the trial court granted defendant Robert Andrew Johnson’s motion to quash

the complaint and information, the State filed its notice of appeal under Article 44.01 of the Texas

Code of Criminal Procedure. See Tex. Code Crim. Proc. art. 44.01(a)(1). The State’s brief was

originally due on May 1, 2013, but was not filed. Instead, the State subsequently filed three motions

for extension of time. We granted the motions, making the State’s brief due by August 20, 2014.

However, the State failed to file a brief by that date. On August 27, 2014, we notified the State that

its brief was overdue. To date, the State has not filed a brief or otherwise responded to our notice.

                Under Texas Rule of Appellate Procedure 38.8(b), when an appellant in a criminal

case fails to timely file a brief, an appellate court must first notify counsel that a brief was due and

not filed. Tex. R. App. P. 38.8(b). If a satisfactory response is not received, the appellate court

abates and remands the appeal to the trial court to determine “whether the appellant desires to

prosecute his appeal, whether the appellant is indigent, or if not indigent, whether retained counsel
has abandoned the appeal.” Id. However, “Rule 38.8 plainly was ‘intended to protect the interests

of a criminal-defendant appellant.’” State v. Palacios, 968 S.W.2d 467, 468 (Tex. App.—Fort Worth

1998, no pet.) (citing State v. Sanchez, 764 S.W.2d 920, 921 (Tex. App.—Austin 1989, no pet.)).

When the State prosecutes an appeal pursuant to Article 44.01 of the Texas Code of Criminal

Procedure, the protections given to an appellant under Rule 38.8(b) do not apply. State v. Garza,

88 S.W.3d 353, 354 (Tex. App.—San Antonio 2002, no pet.) (per curiam); Palacios, 968 S.W.2d

at 468; Sanchez, 764 S.W.2d at 921.

              By failing to file a brief or respond to our notice, the State, by and through its

prosecuting attorney, has abandoned this appeal. See Palacios, 968 S.W.2d at 468; Sanchez,

764 S.W.2d at 921. Accordingly, this appeal is dismissed for want of prosecution.



                                            __________________________________________

                                            Scott K. Field, Justice

Before Justices Puryear, Pemberton, and Field

Dismissed for Want of Prosecution

Filed: October 17, 2014

Do Not Publish




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