Jose O. Martinez v. State of Texas ( 2001 )

NO. 07-01-0055-CR

IN THE COURT OF APPEALS

FOR THE SEVENTH DISTRICT OF TEXAS

AT AMARILLO

PANEL A

JULY 5, 2001

______________________________

JOSE O. MARTINEZ, APPELLANT

V.

THE STATE OF TEXAS, APPELLEE

_________________________________

FROM THE 286 TH DISTRICT COURT OF HOCKLEY COUNTY;

NO. 95-01-4169; HONORABLE ANDREW J. KUPPER, JR., JUDGE

_______________________________

Before BOYD, C.J., and REAVIS and JOHNSON, JJ.

Appellant Jose O. Martinez appeals from denial of a Motion to Enter Nunc Pro Tunc  which was filed following his conviction and sentence in Cause No. 95-01-4169 in the 286 th District Court of Hockley County (the trial court), for Burglary of a Habitation.

On May 4, 2001, this court abated the appeal and remanded the cause to the trial court for hearing and determination of whether appellant desired to prosecute this appeal.  On June 13, 2002, the trial court held a hearing to determine whether appellant desired to prosecute this appeal.  The appellate clerk has received and filed a Statement of Facts in regard to the hearing , which includes the trial court’s findings and recommendations pursuant to prior direction from this court.  Those findings include a finding that appellant does not desire to prosecute this appeal.  Additionally, the trial court has concluded that the appeal is moot.

Accordingly, we determine that appellant does not desire to prosecute this appeal, has abandoned the appeal, has constructively withdrawn his Notice of Appeal, and the appeal is moot.   See Tex. R. App. P . 2 and 42.2.  The appeal is dismissed.   See Tex. R. App. P . 43.2(f).     

Phil Johnson

   Justice

Do not publish.