Order entered August 26, 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

                                           ORDER
       On July 5, 2019, the Court granted counsel’s motion to abate this appeal for a

determination of indigence. We abated the appeal 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, the trial court conducted a hearing and made findings of fact on the

record that included findings appellant had not maintained contact with counsel, he had

abandoned the appeal, his current address was unknown, and there were no facts indicating

appellant was indigent.
       By order entered July 30, 2019, the Court adopted the trial court’s findings. Because

appellant had failed to pay for the reporter’s record, he had abandoned the appeal, and there was

no address at which to provide appellant with additional notice of the overdue reporter’s record,

the Court ordered the appeal submitted without a reporter’s record or briefs.

       Upon review of the record, however, the Court notes the trial court clerk filed a July 29,

2019 supplemental clerk’s record. The supplemental clerk’s record includes documents showing

that on July 18, 2019, as a result of the finding that appellant had abandoned his appeal, the trial

court held appellant’s bond insufficient and issued a warrant of arrest. On July 24, 2019,

appellant was arrested pursuant to the warrant. During his arraignment, appellant filled out a

financial affidavit showing he is living with his mother at an address 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.

       Before submitting the case without a reporter’s record, the Court must give appellant

“notice and a reasonable opportunity to cure” the failure to file the reporter’s record. See TEX. R.

APP. P. 37.3(c). Because appellant’s address was unknown, the Court did not give appellant

notice and a reasonable opportunity to file the overdue reporter’s record. Accordingly, we

VACATE that portion of our July 30, 2019 order that orders the appeal submitted, and we

REMOVE this case from submission.

       We ORDER appellant to file, within FOURTEEN DAYS of the date of this order,

written verification that (1) he has requested the reporter’s record be prepared; and (2) he has

paid or made arrangements to pay the fee for the preparation of the reporter’s record or he is

entitled to appeal without paying the fee. See TEX. R. APP. P. 37.3(c).




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       Because the trial court has already conducted a hearing and has found that appellant

abandoned the appeal, a finding adopted by this Court, if appellant fails to provide the written

verification as ordered, the Court will order this appeal 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, 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).

       We DIRECT the Clerk of the Court to transmit a copy of this order, by electronic

transmission to counsel for the parties.

       We FURTHER DIRECT the Clerk of the Court to send a copy of this order, by first

class mail, to Bobby Bruner; 2808 Shaye Lane; Fort Worth, Texas 76011.



                                                    /s/    ROBERT D. BURNS, III
                                                           CHIEF JUSTICE




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