AFFIRMED and Opinion Filed September 23, 2019




                                               In The
                                Court of Appeals
                         Fifth District of Texas at Dallas
                                       No. 05-19-00356-CR

                                 BOBBY BRUNER, Appellant
                                           V.
                               THE STATE OF TEXAS, Appellee

                      On Appeal from the County Criminal Court No. 3
                                   Dallas County, Texas
                          Trial Court Cause No. MB16-31477-C

                              MEMORANDUM OPINION
                           Before Justices Myers, Osborne, and Nowell
                                    Opinion by Justice Nowell
        Bobby Bruner appeals his conviction for misdemeanor driving while intoxicated with an

open container. After conducting a fundamental error review, we affirm.

       The clerk’s record was timely filed in this case. On July 1, 2019, retained counsel filed a

motion to abate this appeal for a determination of indigence. In the motion, appellant’s counsel

reported that he had agreed to represent appellant on a pro bono basis provided appellant paid the

costs for filing the record. Counsel stated appellant had not paid for the reporter’s record, his

telephone and emergency contact telephone numbers had been disconnected, and counsel had been

unable to communicate with him since April 16, 2019. Counsel requested the Court abate the

appeal to allow the trial court to conduct a hearing to determine if appellant is indigent and whether

counsel’s representation should continue. On July 5, 2019, we granted the motion and ordered the
trial court to conduct a hearing and to make findings of fact regarding whether appellant could be

located, whether appellant desired to prosecute the appeal or had abandoned it, and whether

appellant is indigent and desired appointed appellate counsel.

       On July 17, 2019, a supplemental reporter’s record was filed of the hearing the trial court

held that same day. During the hearing, counsel told the trial court he had attempted to contact

appellant by telephone, text message, and certified mail. Counsel reported appellant’s telephone

number had been disconnected and the certified mail he sent was returned as undeliverable.

Counsel informed the trial court that he had attempted to reach appellant through his emergency

contact, but her telephone number had also been disconnected and she did not reply to counsel’s

messages sent through Facebook. In response to the trial court’s question, counsel affirmed he

had not worked pro bono pretrial and during trial, and that appellant had told him that appellant

was willing and able to pay for the record. The trial court took judicial notice that there are no

cases against appellant in Dallas County’s computer system, and thus there is no history of him

being adjudged an indigent or having counsel appointed to represent him. After hearing from

counsel, the trial court made findings of fact which included findings that appellant has abandoned

his appeal.

       On July 29, 2019, the trial court filed a supplemental clerk’s record showing that as a result

of the trial court’s finding that appellant had abandoned the appeal, on July 18, 2019, the trial court

held appellant’s bond insufficient and issued a warrant of arrest setting a $2,500 cash bond for

release. Appellant was arrested on July 24, 2019. During his arraignment, appellant filled out a

financial affidavit showing he is living with his mother in Fort Worth, his expenses exceed his

income, and he has no assets. Nevertheless, appellant declined to check a box declaring himself

an indigent in need of counsel and initialed a box on the form stating he would hire his own

attorney.

                                                 –2–
       On July 30, 2019, the Court entered an order reinstating the appeal and adopting the

following findings of fact made by the trial court:

               appellate counsel has made reasonable and diligent efforts to locate appellant;

               appellant has not maintained contact with counsel;

               appellant’s actions indicate a disinterest in his case and communicate an interest in
                abandoning his appeal;

               appellant’s current address is unknown and not determinable;

               there are no facts before the trial court indicating that appellant is now or has ever
                been indigent.

The Court did not adopt a finding that it was no longer necessary for counsel’s representation to

continue in the current case due to abandonment. The Court’s order further stated that because it

appeared appellant has failed to pay for the reporter’s record and had abandoned the appeal, and

there being no means of providing appellant with additional notice of the overdue reporter’s record,

the case was ordered submitted on the existing record for fundamental error review.

       Upon further consideration of the July 29, 2019 supplemental clerk’s record and out of an

abundance of caution, the Court vacated its July 30, 2019 order to the extent it submitted the

appeal. The Court then ordered appellant to file written verification by September 9, 2019 that he

(1) requested the reporter’s record be prepared; and (2) paid or made arrangements to pay the fee

for the preparation of the reporter’s record or was entitled to appeal without paying the fee. See

TEX. R. APP. P. 37.3(c) (before submitting case without reporter’s record, court must give appellant

“notice and a reasonable opportunity to cure” failure to file reporter’s record). We reminded

appellant that the trial court had already conducted a hearing and found that appellant abandoned

the appeal, a finding adopted by this Court. We cautioned appellant that the failure to provide the

written verification as ordered would result in this appeal being submitted without the reporter’s

record and briefs. See TEX. R. APP. P. 37.3(c), 38.8(b)(4); Sutherland v. State, 658 S.W.2d 169,

                                                –3–
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). Because appellant did not

comply with our order or otherwise communicate with the Court about the appeal, the Court again

ordered the case submitted on the existing record.

       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, 658 S.W.2d at 170; Scotka, 856 S.W.2d at 791 n.1; see also Turner, 2011

WL 522932, at *1. The Court reviews the existing record for fundamental error. See Lott v. State,

874 S.W.2d 687, 688 (Tex. Crim. App. 1994); Burton v. State, 267 S.W.3d 101, 103 (Tex. App.—

Corpus Christi 2008, no pet.) (citing Saldano v. State, 70 S.W.3d 873, 887–88 (Tex. Crim. App.

2002) (listing fundamental errors)).

       The clerk’s record has been filed. There is no reporter’s record or brief. Without a brief,

no issues are before us. In the interest of justice, we have reviewed the clerk’s record for

fundamental error and have found none. See Burton, 267 S.W.3d at 103.

       We affirm the trial court’s judgment.




                                                     /Erin A. Nowell/
                                                     ERIN A. NOWELL
                                                     JUSTICE

Do Not Publish
TEX. R. APP. P. 47.2(b)
190356F.U05




                                               –4–
                              Court of Appeals
                       Fifth District of Texas at Dallas
                                      JUDGMENT

 BOBBY BRUNER, Appellant                             On Appeal from the County Criminal Court
                                                     No. 3, Dallas County, Texas
 No. 05-19-00356-CR        V.                        Trial Court Cause No. MB16-31477-C.
                                                     Opinion delivered by Justice Nowell,
 THE STATE OF TEXAS, Appellee                        Justices Myers and Osborne participating.

       Based on the Court’s opinion of this date, the judgment of the trial court is AFFIRMED.


Judgment entered this 23rd day of September, 2019.




                                             –5–
