Edgar Vernell Quiller v. State ( 2009 )

Opinion issued July 16, 2009

In The

Court of Appeals

For The

First District of Texas

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NO. 01-07-00302-CR

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EDGAR VERNELL QUILLER, Appellant

V.

THE STATE OF TEXAS, Appellee

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On Appeal from the 506th Judicial District Court ⁽¹⁾

Waller County, Texas

Trial Court Cause No. 060312131

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MEMORANDUM OPINION

Appellant, Edgar Quiller, was convicted by a jury of the state jail felony offense of possession of a controlled substance namely cocaine, in an amount of less than one gram. Punishment was assessed at confinement in the state jail for two years probated for two years and assessed a fine of $800. Appellant filed a pro se notice of appeal.

On July 24, 2007, the Clerk of this Court notified appellant that the complete record had been filed and that his brief was due in 30 days. Appellant's brief was due on August 24, 2007. Because the brief was not filed, the Clerk of this Court sent a past due brief notice to appellant. Appellant did not file a response, nor did he file a brief.

We abated the appeal and remanded the case to the trial court for a hearing. Our order directed the trial court to determine whether appellant desired to pursue his appeal and, if so, whether he was indigent. The order of abatement stated in part:

On October 1, 2007, the Clerk of this Court notified appellant that his brief was past due. On October 1, 2007, we received a document from the appellant stating that he has financial problems because he is disabled and cannot work. Attached to his document is a letter from Dr. Helen M. Schilling. We construe appellant's document as a motion for extension of time to file his brief and a request for an indigency hearing. The motion is granted. A copy of appellant's motion is attached to this order.

We may not dismiss an appeal in a criminal case for want of prosecution. Compare Tex. R. App. P. 42.3 with Tex. R. App. P. 42.4. Nor may we consider an appeal without briefs unless the trial court has found either: (1) that an appellant does not desire to pursue the appeal, or (2) that a non-indigent appellant has not made the necessary arrangements for filing a brief. See Tex. R. App. P. 38.8(b)(4).

We must therefore abate the appeal and remove it from this Court's active docket. We remand the case to the trial court to conduct a hearing at which appellant shall be present. We direct the trial court to make appropriate findings on these issues:

(1) whether appellant wishes to prosecute the appeal;

(2) whether appellant is indigent and entitled to appointed counsel at no expense to himself; and

(3) if not indigent, whether appellant has made the necessary arrangements for filing a brief, i.e., whether appellant has paid counsel to file a brief and, if so, the name, address, and telephone number of retained counsel. See Tex. R. App. P. 38.8(b)(4).

The trial court shall have a court reporter, or court recorder, record the hearing. The trial court's findings and recommendations shall be sent to this Court no later than 60 days from the date of this order. If the hearing is conducted by video teleconference, the trial court's findings and recommendations and a certified videotape or compact disk of the hearing shall be filed in this Court no later than 60 days from the date of this order.

The appeal is abated, treated as a closed case, and removed from this Court's active docket. The appeal will be reinstated on this Court's active docket when the trial court's findings and recommendations are filed in this Court. The Court will also consider an appropriate motion to reinstate the appeal filed by either party.

The trial court scheduled a hearing on our order of abatement. The record of that hearing has been filed with the Clerk of this Court. Appellant did not appear at the abatement hearing. The reporter's record reflects that the trial court proceeded with the hearing and made the following findings:

On November 5, 2007, I issued a notice of setting to the Honorable Elton Matthis with notice to Mr. Edgar Vernell Quiller. That notice was sent certified mail and a return receipt requested. It was sent to both Mr. Quiller's physical address and to his Post Office Box address; and that letter was returned as unclaimed, and that letter is in the file and it is clearly marked that Mr. Edgar Vernell Quiller, 1031 First Street, Post Office Box 114 of Hempstead, Texas 77445, and it is marked "unclaimed." And further checking with the Waller County Appraisal District to determine addresses, the Quiller residence is still located at 1031 First Street, Hempstead, Texas 77445, of which the Court takes judicial notice . . .Then I do find that Appellant Quiller was duly notified of this hearing and letter attempts have been made to contact Mr. Quiller and he is known to be in this community, and I do find that Appellant Edgar Vernell Quiller has abandoned his appeal in this cause of action; and with the abandonment, no further action will be taken.

A supplemental clerk's record was filed on January 24, 2008 that contains the trial court's written findings and recommendations which state in part:

On November 5, 2007, the trial court issued its notice of setting to appellant and the State's attorney, certified mail, return receipt requested; the notices being sent to appellant at both his physical address and his mailing address.

Notices to appellant were returned as unclaimed, and that returned letter is now a part of the clerk's file.

Judicial notice was taken that the records of the Waller County Appraisal District indicate the home address of appellant to be 1031 First Street, Hempstead, Texas 77445, the same address provided by appellant in his notice of appeal.

Based on the foregoing, the trial court further finds that appellant Edgar Vernell Quiller has abandoned his appeal in this cause of action, and with that abandonment no further findings of the trial court are required.

The trial court recommends that the Court of Appeals for the Fist District of Texas dismiss the appeals and affirm the prior judgment of the trial court.

After receiving the trial court's findings, we reinstated the appeal and notified the parties that the trial court had made a finding that appellant that has abandoned his appeal. ⁽²⁾ The reinstatement order also notified appellant, Edgar Vernell Quiller, that unless his brief was filed on or before February 21, 2008, his appeal would be set for submission without briefs. See Tex. R. App. P. 38.8(b)(4). On April 24, 2008, because no brief had been filed on or before February 21, 2008, the Clerk of this Court sent a past-due brief notice to the respondent that requested a response by May 5, 2008. No response was received.

As of the date of this opinion, no brief has been filed in this Court. According to the Rules of Appellate Procedure, we may consider an appeal without briefs if the trial court has found that the appellant no longer desires to prosecute the appeal. See Tex. R. App. P. 38.8(b)(4). Accordingly, we consider this appeal without briefs.

We have reviewed the record for fundamental error and find none. See Carroll v. State, 75 S.W.3d 633, 634 (Tex. App.--Waco 2002, no pet.); Ashcraft v. State, 802 S.W.2d 905, 906 (Tex. App.--Fort Worth 1991, no pet.); Meza v. State, 742 S.W.2d 708, 708-09 (Tex. App.--Corpus Christi 1987, no pet.).

We affirm the judgment of the trial court.

Any pending motions are denied as moot.

PER CURIAM

Panel consists of Justices Jennings, Alcala, and Higley.

Do not publish. Tex. R. App. P. 47.2(b).

1. During the pendency of this appeal all proceedings in the 9th Judicial District Court, the original trial court, were transferred to the 506th Judicial District Court of Waller County.

2. Appellant was represented by retained counsel at trial.