                               Fourth Court of Appeals
                                     San Antonio, Texas
                                 MEMORANDUM OPINION
                                         No. 04-13-00895-CR

                                           Gary PETERSON,
                                              Appellant

                                                 v.
                                             The State of
                                        The STATE of Texas,
                                              Appellee

                            From the County Court, Wilson County, Texas
                                  Trial Court No. 11-10-0393-CRC
                             Honorable Marvin Quinney, Judge Presiding

PER CURIAM

Sitting:          Karen Angelini, Justice
                  Sandee Bryan Marion, Justice
                  Marialyn Barnard, Justice

Delivered and Filed: July 23, 2014

AFFIRMED

           Gary Peterson was convicted of the offense of misdemeanor driving while intoxicated and

sentenced to twelve months of community supervision. Peterson appealed.

           Peterson’s brief was originally due on March 24, 2014. When no brief was filed, the clerk

of this court notified Peterson’s counsel of the deficiency. Peterson’s counsel is retained. When

Peterson’s counsel failed to respond to the clerk’s notice, we abated the appeal and remanded the

case to the trial court for a hearing. The trial court held a hearing. Peterson’s counsel appeared at

the hearing and represented that Peterson was not indigent and that Peterson no longer desired to
                                                                                         04-13-00895-CR


pursue the appeal. After the hearing, the trial court filed written findings indicating that Peterson

is not indigent and that Peterson no longer desires to pursue the appeal.

        In a criminal case, we may not dismiss or consider an appeal without briefs unless it is

shown that the appellant no longer desires to prosecute his appeal, or that he is not indigent and

has failed to make the necessary arrangements for filing a brief. TEX. R. APP. P. 38.8(b)(4).

However, when the trial court finds that the appellant no longer desires to prosecute the appeal, or

that the appellant is not indigent but has not made the necessary arrangements for filing a brief, we

may consider the appeal without briefs, as justice may require. Id.; Lott v. State, 874 S.W.2d 687,

688 (Tex. Crim. App. 1994) (affirming conviction on record alone when an appellant failed to file

a pro se brief after being properly admonished).

        We have reviewed the record in this appeal for fundamental error and have found none.

See Jaimes v. State, No. 04-04-00525-CR, 2005 WL 50115, at *1 (Tex. App.—San Antonio 2005, no

pet.) (not designated for publication) (reviewing record for fundamental error after the trial court held

a hearing and found the appellant no longer desired to pursue the appeal); McMahon v. State, No. 04-

01-00442-CR, 2002 WL 1285137, at *1 (Tex. App.—San Antonio 2002, no pet.) (not designated for

publication) (reviewing record for fundamental error after the trial court held a hearing and made

appropriate findings). The trial court’s judgment is therefore affirmed.


                                                    PER CURIAM

DO NOT PUBLISH




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