


 
IN THE
TENTH COURT OF APPEALS










 

No. 10-06-00157-CR
No. 10-06-00158-CR
 
Curtis Lester Ealy,
                                                                      Appellant
 v.
 
The State of Texas,
                                                                      Appellee
 
 

From the 3rd District Court
Anderson County, Texas
Trial Court Nos. 27,699 and
28,261
 

ABATEMENT ORDER





 
            Appellant’s brief is overdue in this appeal.  
 
          Therefore, we abate this appeal to the
trial court to conduct a hearing within 30 days of the date of this Order
pursuant to Texas Rule of Appellate Procedure 38.8(b)(2) and (3).  Tex. R. App. P. 38.8(b)(2), (3); see
Peralta v. State, 82 S.W.3d 724 (Tex. App.—Waco 2002, no pet.) (attached
as an Appendix).
          Supplemental Clerk’s and Reporter’s
Records are ordered to be filed within 45 days of the date of this Order.  See
Tex. R. App. P. 38.8(b)(3).
 
                                                                   PER
CURIAM
Before
Chief Justice Gray,
          Justice
Vance, and
          Justice
Reyna
Appeal
abated
Order
issued and filed December 20, 2006
Do
not publish 


APPENDIX
 




 
LEXSEE 82 S.W.3D 724
 
FERNANDO LEOPOLDO PERALTA, Appellant v.
THE STATE OF TEXAS, Appellee
 
No. 10-01-135-CR
 
COURT OF APPEALS OF TEXAS, TENTH DISTRICT,
  WACO
 
82 S.W.3d 724;
2002 Tex. App. LEXIS 4564
 
June 26, 2002, Delivered  
June 26, 2002, Filed
 




PRIOR HISTORY:  [**1]  From the County Criminal Court at Law No. 12. Harris County, Texas. Trial Court # 1026596.
 
DISPOSITION: Dismissed.
 
COUNSEL: Attorneys
for Appellant/Relator: Fernando Leopoldo Peralta, Pro se, Houston, TX.
 
Attorneys for Appellee/Respondent: Charles A. Rosenthal, Jr.,
HARRIS COUNTY DISTRICT ATTORNEY, Houston, TX. Calvin A. Hartmann, HARRIS COUNTY
ASST. DISTRICT ATTORNEY, Houston, TX.
 
JUDGES: Before
Chief Justice Davis, Justice Vance, and Justice Gray.
 
OPINION BY: Tom
GRAY 
 
OPINION:  [*725]

A jury found Fernando Leopoldo Peralta
guilty of driving while intoxicated. The trial court sentenced him to 180 days
in jail, but suspended that sentence and placed him on community supervision
for one year. Acting as his own attorney, Peralta timely filed a notice of
appeal. After a Clerk's record was filed, this cause was transferred from the
14th Court of Appeals to this Court. Since that time, a Reporter's record was
due to be filed. The court reporter informed this Court that Peralta had not
paid for the record to be transcribed. We informed Peralta by letter that if he
did not pay the reporter or make arrangements to pay within 10 days, the appeal
would be submitted on the Clerk's record alone. See TEX. R. APP. P.
37.3(c). The letter was returned as undeliverable.
On January 16, 2002, we abated this cause
to the trial court with instructions to hold a hearing within thirty days of
the date of this order to determine (1) where Peralta is now residing; (2) why
no reporter's record has been [**2]  paid for; (3) whether Peralta desires to
proceed with the appeal; and (4) whether Peralta is indigent. Id. 38.8(b)(1).
The trial court held a hearing on the abatement order on March 22, 2002. On
March 29, 2002, the following findings were filed with this Court:
1. On March 22, 2002, the trial court
asked for announcements in this case. The State appeared through an assistant
district attorney. Appellant failed to appear.
2. The trial court mailed notice to
appellant of today's court setting using the last known address on documents in
the court's file and said notice was returned with an indication of
insufficient address.
3. The court coordinator for this court
contacted appellant's bonding company and was informed any and all phone
numbers for appellant were no longer working numbers and they have also been
unable to locate appellant. They believe appellant is currently residing and
working in Mexico.
4. Appellant has made one effort to
contact this court to request the cost of the transcript. He was to call back
and failed to do so. He did not leave a number where he could be reached at the
time he called.
 
The trial court concluded that Peralta does not desire to
prosecute [**3]  the appeal and has abandoned the appeal.
It has now been over a year since the
clerk's record was filed. We have had no contact from Peralta who has been
released on an appeal bond since February of 2001.
Peralta has completely failed in his duty
to prosecute this appeal, to contact this Court, or to take any further action
toward prosecuting this appeal. Under these circumstances, we conclude this
appeal was not taken with the intention of pursuing it to completion, but
instead was taken for the purposes of delay. Accordingly, we dismiss this
appeal, under our inherent authority, for want of prosecution.  Bush v.
State, 2002 Tex. App. LEXIS 4347(2002); see also  McDaniel v.
State, 2002 Tex. App. LEXIS 2404 (2002); Rodriguez  [*726]  v.
State, 970 S.W.2d 133, 135 (Tex. App.--Amarillo 1998, pet. ref'd).
TOM GRAY
Justice




 
 

