NO. 07-10-00508-CR
IN THE COURT OF APPEALS
FOR THE SEVENTH DISTRICT OF TEXAS
AT AMARILLO
PANEL A
APRIL 19, 2011
LESHAWN MCREYNOLDS, APPELLANT
v.
THE STATE OF TEXAS, APPELLEE
FROM THE 108TH DISTRICT COURT OF POTTER COUNTY;
NO. 60,114-E; HONORABLE DOUGLAS WOODBURN, JUDGE
Before CAMPBELL and HANCOCK and PIRTLE, JJ.
MEMORANDUM OPINION
Appellant, LeShawn McReynolds, appeals an Order of Deferred Adjudication
relating to a possession of marijuana offense. Under the Order, appellant was placed
on deferred adjudication community supervision for a period of ten years and was
assessed a $1,500 fine. However, due to appellant’s nonfeasance in prosecuting this
appeal, we now dismiss the appeal for want of prosecution.
Appellant’s appointed trial counsel timely filed notice of appeal on appellant’s
behalf on December 16, 2010. On January 19, 2011, this Court received a request from
the trial court clerk for extension of time to file the clerk’s record. This motion indicated
that appellant had not paid or made arrangements to pay for the clerk’s record and that
no attorney had “appeared” in the case for appeal. On that same date, this Court
granted the clerk’s request for extension, and sent separate notice to appellant
regarding his failure to pay for or make arrangements to pay for the clerk’s record.
Further, this Court notified appellant that, if this Court did not receive the clerk=s record
or a certification from the clerk or appellant that the record had been paid for or that
satisfactory arrangements had been made for the preparation of the record by February
21, 2011, this Court may dismiss the appeal for want of prosecution. See TEX. R. APP.
P. 37.3(b). When the Court did not receive the clerk’s record by this deadline and, in
fact, received another request for extension of time to file the clerk’s record, again
indicating that appellant had not paid or made arrangements to pay for the clerk’s
record, we abated and remanded the case to the trial court on March 9, 2011.
Our Order of Abatement and Remand clarified that appointed trial counsel
remained responsible for ensuring that appellant’s appeal was diligently pursued, and
directed the trial court to hold a hearing to determine: (1) whether appellant desires to
prosecute this appeal; (2) if appellant desires to prosecute this appeal, whether
appellant is indigent; (3) if appellant is indigent and desires to prosecute the appeal,
whether he is entitled to have the appellate record furnished without charge; (4) whether
present counsel for appellant has abandoned the appeal; (5) if appellant desires to
prosecute this appeal and is indigent, whether appellant=s present counsel should be
replaced; and (6) what orders, if any, should be entered to assure the filing of
appropriate notices and documentation to dismiss appellant=s appeal if appellant does
not desire to prosecute this appeal or, if appellant desires to prosecute this appeal, to
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assure that the appeal will be diligently pursued. As directed, the trial court held this
hearing on March 24, 2011.
Appointed trial counsel for appellant and counsel for the State appeared at this
hearing and announced ready. However, appellant did not appear. Following this
hearing, the trial court entered findings of facts and conclusions of law that include the
following findings:
Since Appellant’s release from custody[,] he has failed to have any contact
with his counsel.
Since Appellant’s release from custody[,] he has failed to have any contact
with his community supervision officer[,] and has failed to comply with any
terms and conditions of his community supervision.
All attempts to locate Appellant by both counsel and community
supervision have been fruitless.
Appellant’s conduct demonstrates a willful and intentional failure to comply
with the requirements of pursuing an appeal.
Appellant has wholly failed to establish any indicia of a desire to pursue
his appeal or cooperate with the judicial process.
In addition, the trial court made the following conclusion of law: “Appellant’s willful and
intentional failure to comply with the requirements of the judicial process[,] and his
failure to communicate with counsel constitutes [a] clear desire not to prosecute this
appeal.”
Under these circumstances, we conclude that this appeal was not taken with the
intention of pursuing it to completion, but instead was taken for other purposes
unrelated to the disposition of the case. Meyer v. State, 310 S.W.3d 24, 26 (Tex.App.—
Texarkana 2010, no pet.). As such, we conclude that appellant “has engaged in dilatory
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and bad faith abuse of the judicial process.” Id.; see also Brager v. State, No. 0365-03,
2004 Tex.Crim.App. LEXIS 2203, at *6-*7 (Tex.Crim.App. Oct. 13, 2004) (not
designated for publication). Consequently, we now invoke Rule 2 of the Texas Rules of
Appellate Procedure as well as our inherent authority to control disposition of causes on
our docket, and dismiss this appeal for appellant’s want of prosecution. See TEX. R.
APP. P. 2, 42.3(b); Brager, 2004 Tex.Crim.App. LEXIS 2203, at *10; Meyer, 310 S.W.3d
at 26-27; Rodriguez v. State, 970 S.W.2d 133, 135 (Tex.App.—Amarillo 1998, pet.
ref’d).
Mackey K. Hancock
Justice
Do not publish.
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