30 04 2010 180 38 v. 08 09 00177 CR 2010 LEXIS 9122 17 2010 20 2010 (2011)

Court of Appeals of Texas, Austin.

Jose Francisco Lagos was charged with burglary of a vehicle.  See Tex. Penal Code Ann. § 30.04 (West Supp.2010).  A jury found Lagos guilty of the offense, and the trial court assessed punishment at 180 days' imprisonment.  Lagos filed a notice of appeal, but failed to file an appellate brief.  Lagos's appellate counsel filed a motion to withdraw in the trial court, stating that Lagos was delivered to federal authorities for deportation proceedings, that she has been unable to reach him, and that he has not contacted her regarding this appeal.  The trial court issued an order permitting appellate counsel to withdraw on the grounds that “federal officials have moved to deport the Defendant, Jose Lagos, and counsel's attempts to contact him have been futile.”  If a trial court finds that an appellant in a criminal case no longer desires to prosecute the appeal, we may consider the appeal without briefs, as justice may require.  See Tex.R.App. P. 38.8(b)(4).  Where an appellate court determines that the appellant has abandoned the appeal, the requirement that this finding be made by the trial court may be suspended if appellant's deportation prevents the trial court from conducting a hearing.  See Alakhras v. State, 73 S.W.3d 434, 436 (Tex.App.-Houston [1st Dist.] 2002, no pet.) (holding that where appellant had been deported and had not made attempts to prosecute appeal, good cause existed to suspend the requirement of Rule 38.8(b)(4) that finding be made by trial court where trial court “was unable to conduct a hearing ․ because of appellant's deportation”) (citing Tex.R.App. P. 2);  see also Vigil v. State, No. 08-09-00177-CR, 2010 Tex.App. LEXIS 9122, at *4-6 (Tex.App.-El Paso Nov. 17, 2010, no pet.) (not designated for publication) (same).  Given the representations of Lagos's former counsel and the trial court's finding that attempts to contact Lagos have been futile, we conclude that Lagos has abandoned this appeal.  We consider this appeal without briefs, and affirm the judgment of conviction.1  According to the testimony presented at trial, at approximately 9:20 on the evening of February 1, 2010, Alexis Copithorn observed a man removing items 2 3

NO. 03-10-00339-CR

Decided: February 24, 2011

Before Chief Justice Jones, Justices Henson and Goodwin