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Opinion filed September 25, 2008
In The
Eleventh Court of Appeals
__________
No. 11-07-00054-CR
__________
ARMANDO MONTEZ BARRIGA, Appellant
V.
STATE OF TEXAS, Appellee
On Appeal from the 385th District Court
Midland County, Texas
Trial Court Cause No. CR32196
M E M O R A N D U M O P I N I O N
The jury convicted Armando Montez Barriga of possession of cocaine. The trial court assessed his punishment at confinement for one year in a state jail facility. The sentence was imposed in open court on March 1, 2007. We affirm.
Appellant has been represented at all times on appeal by retained counsel. When retained counsel filed a motion to withdraw, the appeal was abated in order that the trial court could address the issue of indigency and whether appointment of counsel was appropriate. After conducting a hearing, the trial court entered the following findings:
1. On March 1, 2007, Marie Galindo, having been retained as counsel for the Defendant, filed a motion for new trial, notice of appeal and a motion for release on appeal bond.
2. The Defendant has neither requested appointed counsel nor made a showing that he is indigent for the purposes of appeal.
3. It is not appropriate to appoint counsel on appeal.
The appeal was reinstated, and the reporter=s record was due to be filed in this court on or before August 17, 2007. The clerk=s record was filed in this court on August 3, 2007, and this court on its motion extended the time for filing the reporter=s record until September 17, 2007. The court reporter repeatedly advised this court in writing that appellant had not made arrangements to pay for the reporter=s record. In the interest of justice, this court granted appellant=s two motions to extend the due date for the reporter=s record in order that he might pay for the record. The final due date for the reporter=s record was set at February 11, 2008. Appellant again failed to make the necessary arrangements and was advised on February 14, 2008, in a letter from the clerk of this court that his appeal would be submitted on the clerk=s record alone and that his brief was due to be filed in this court on or before March 17, 2008. Appellant=s brief was finally received and filed in this court on June 9, 2008.
In his sole issue, appellant contends that the trial court abused its discretion in denying his motion to suppress. When retained counsel filed the brief on appellant=s behalf, she also filed an appendix containing only the ninety-seven page reporter=s record from the hearing on the motion to suppress. As the State notes in its brief, this reporter=s record is not properly before this court. Appellant did not raise the issue of indigency. Retained counsel was allowed 347 days to file this nintey-seven page reporter=s record and was advised 350 days after the date the sentence was imposed in open court that his appeal would be submitted on the clerk=s record alone. The failure to file the reporter=s record is due to appellant=s actions. Tex. R. App. P. 37.3(c). The record properly before this court does not support appellant=s arguments in his sole issue. The issue is overruled.
The judgment of the trial court is affirmed.
PER CURIAM
September 25, 2008
Do not publish. See Tex. R. App. P. 47.2(b).
Panel consists of: Wright, C.J.,
McCall, J., and Strange, J.