Abke, Michael v. State ( 2002 )

Opinion issued November 21, 2002  

In The

Court of Appeals

For The

First District of Texas

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NO. 01-02-00112-CR

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MICHAEL ABKE, Appellant

V.

THE STATE OF TEXAS, Appellee

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On Appeal from the 155th District Court

Austin County, Texas

Trial Court Cause No. 99R-084

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MEMORANDUM OPINION

Appellant, Michael Abke, was convicted by a jury of felony theft. According to information provided to this Court by the Austin County District Clerk, the date of judgment was December 4, 2001. Appellant filed a timely motion for new trial and notice of appeal. The appeal was opened in this Court on January 29, 2002.

On May 3, 2002, the district clerk notified this Court by letter that no payment arrangements had been made for preparation of the clerk's record. The letter reflects that a copy was mailed to appellant. On April 17, 2002, the court reporter filed a motion for extension of time to file the reporter's record because no payment arrangements had been made. We notified appellant by letter of the court reporter's motion and warned that the appeal may be considered without a reporter's record. We received no response.

On June 6, 2002, we ordered the appeal abated and remanded to the trial court for an indigency hearing. The trial court filed written findings of fact in this Court on July 24, 2002. The trial court found:

1. Appellant does want to pursue his appeal;

2. Appellant is not indigent;

3. Appellant has, or will, make arrangements to pay the District Clerk and Court Reporter for the record; and

4. Appellant has hired attorney Michael L. Glover, P. O. Box 610, Brookshire, Texas, 77423, (281)375-5225, to represent Appellant on his appeal.

Based on these findings, we ordered the appeal reinstated on August 1, 2002. We further ordered that unless we received on or before August 30, 2002: (1) the clerk's and reporter's records, (2) proof of payment for the record, or (3) proof that payment arrangements had been made for the record, the appeal would be considered without a record. We further ordered appellant's brief due on September 30, 2002. We received no response.

We conclude, based on the trial court's findings, that appellant is not indigent and that he has not made the necessary arrangements for filing a brief because neither the clerk's record nor the reporter's record has been filed in this Court. See Tex. R. App. P. 37.3(b), 38.8(b).

There is nothing before this Court for review. The appeal is dismissed.

PER CURIAM

Panel consists of Justices Taft, Alcala, and Price. ⁽¹⁾

Do not publish. Tex. R. App. P. 47.

1. The Honorable Frank C. Price, former Justice, Court of Appeals, First District of Texas at Houston, participating by assignment.