



SPEARS V. STATE



















COURT OF APPEALS

SECOND DISTRICT OF TEXAS

FORT WORTH





NO. 2-02-150-CR





RALPH BERT SPEARS	APPELLANT



V.



THE STATE OF TEXAS	STATE



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FROM THE 211TH DISTRICT COURT OF DENTON COUNTY



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MEMORANDUM OPINION
(footnote: 1)


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Appellant Ralph Bert Spears appeals his conviction for driving while intoxicated.  We affirm.

Appellant filed his notice of appeal on April 26, 2002.  On August 12, 2002, we granted Appellant’s retained counsel’s motion to withdraw and Appellant’s motion for substituted counsel.  On October 1, we notified Appellant’s newly retained counsel that the court reporter responsible for preparing the reporter’s record in this appeal had informed this court that no arrangements had been made to pay for the reporter’s record.  
See
 
Tex. R. App. P. 
35.3(b)(3).  We further notified Appellant’s counsel that unless we received proof of payment by October 16, 2002, the court would consider and decide those points that did not require a reporter’s record and that Appellant’s brief would be due on November 15, 2002. 

Appellant failed to respond to our notification.  Appellant’s second retained counsel then filed a motion to withdraw on February 13, 2003, stating, among others reasons, that he had lost contact with Appellant, that his letters to Appellant concerning payment for the reporter’s record had gone unanswered, and that Appellant had failed to pay for the majority of his legal services.  On March 11, 2003, we granted the motion to withdraw and ordered the appeal abated to determine, among other things, whether Appellant desired to prosecute the appeal.  

Appellant did not attend the abatement hearing, which was held on April 10, 2003.  At the hearing, the trial court stated that two notices had been sent to Appellant’s last known addresses, and both were returned to the court.  The court determined that there was no indication that Appellant was indigent or that he wanted to prosecute his appeal. 

Based on the trial court’s findings at the abatement hearing, the appeal was submitted without briefs on August 22, 2003.  
See
 
Tex. R. App. P
. 38.8(b).  Absent Appellant’s brief, no issues or points are properly before this court, and our examination of the record does not reveal unassigned fundamental error.  
See Lott v. State
, 874 S.W.2d 687, 688 (Tex. Crim. App. 1994).  Accordingly, we affirm the trial court’s judgment.

PER CURIAM



PANEL F:	GARDNER, J.; CAYCE, C.J.; and DAY, J.



DO NOT PUBLISH

Tex. R. App. P. 
47.2(b)



DELIVERED:  August 26, 2003

FOOTNOTES
1:See 
Tex. R. App. P. 
47.4.


