AFFIRMED and Opinion Filed September 23, 2019

In The

Court of Appeals

Fifth District of Texas at Dallas

No. 05-19-00356-CR

BOBBY BRUNER, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the County Criminal Court No. 3

Dallas County, Texas

Trial Court Cause No. MB16-31477-C

MEMORANDUM OPINION

Before Justices Myers, Osborne, and Nowell

Opinion by Justice Nowell

Bobby Bruner appeals his conviction for misdemeanor driving while intoxicated with an 

open container. After conducting a fundamental error review, we affirm.

The clerk’s record was timely filed in this case. On July 1, 2019, retained counsel filed a 

motion to abate this appeal for a determination of indigence. In the motion, appellant’s counsel 

reported that he had agreed to represent appellant on a pro bono basis provided appellant paid the 

costs for filing the record. Counsel stated appellant had not paid for the reporter’s record, his 

telephone and emergency contact telephone numbers had been disconnected, and counsel had been 

unable to communicate with him since April 16, 2019. Counsel requested the Court abate the 

appeal to allow the trial court to conduct a hearing to determine if appellant is indigent and whether 

counsel’s representation should continue. On July 5, 2019, we granted the motion and ordered the 
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trial court to conduct a hearing and to make findings of fact regarding whether appellant could be 

located, whether appellant desired to prosecute the appeal or had abandoned it, and whether 

appellant is indigent and desired appointed appellate counsel.

On July 17, 2019, a supplemental reporter’s record was filed of the hearing the trial court 

held that same day. During the hearing, counsel told the trial court he had attempted to contact 

appellant by telephone, text message, and certified mail. Counsel reported appellant’s telephone 

number had been disconnected and the certified mail he sent was returned as undeliverable. 

Counsel informed the trial court that he had attempted to reach appellant through his emergency 

contact, but her telephone number had also been disconnected and she did not reply to counsel’s 

messages sent through Facebook. In response to the trial court’s question, counsel affirmed he 

had not worked pro bono pretrial and during trial, and that appellant had told him that appellant 

was willing and able to pay for the record. The trial court took judicial notice that there are no 

cases against appellant in Dallas County’s computer system, and thus there is no history of him 

being adjudged an indigent or having counsel appointed to represent him. After hearing from 

counsel, the trial court made findings of fact which included findings that appellant has abandoned 

his appeal.

On July 29, 2019, the trial court filed a supplemental clerk’s record showing that as a result 

of the trial court’s finding that appellant had abandoned the appeal, on July 18, 2019, the trial court 

held appellant’s bond insufficient and issued a warrant of arrest setting a $2,500 cash bond for 

release. Appellant was arrested on July 24, 2019. During his arraignment, appellant filled out a 

financial affidavit showing he is living with his mother in Fort Worth, his expenses exceed his 

income, and he has no assets. Nevertheless, appellant declined to check a box declaring himself 

an indigent in need of counsel and initialed a box on the form stating he would hire his own 

attorney.
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On July 30, 2019, the Court entered an order reinstating the appeal and adopting the 

following findings of fact made by the trial court:

 appellate counsel has made reasonable and diligent efforts to locate appellant;

 appellant has not maintained contact with counsel;

 appellant’s actions indicate a disinterest in his case and communicate an interest in 

abandoning his appeal;

 appellant’s current address is unknown and not determinable;

 there are no facts before the trial court indicating that appellant is now or has ever 

been indigent.

The Court did not adopt a finding that it was no longer necessary for counsel’s representation to 

continue in the current case due to abandonment. The Court’s order further stated that because it 

appeared appellant has failed to pay for the reporter’s record and had abandoned the appeal, and 

there being no means of providing appellant with additional notice of the overdue reporter’s record, 

the case was ordered submitted on the existing record for fundamental error review.

Upon further consideration of the July 29, 2019 supplemental clerk’s record and out of an 

abundance of caution, the Court vacated its July 30, 2019 order to the extent it submitted the 

appeal. The Court then ordered appellant to file written verification by September 9, 2019 that he 

(1) requested the reporter’s record be prepared; and (2) paid or made arrangements to pay the fee 

for the preparation of the reporter’s record or was entitled to appeal without paying the fee. See 

TEX.R. APP. P. 37.3(c) (before submitting case without reporter’s record, court must give appellant 

“notice and a reasonable opportunity to cure” failure to file reporter’s record). We reminded 

appellant that the trial court had already conducted a hearing and found that appellant abandoned 

the appeal, a finding adopted by this Court. We cautioned appellant that the failure to provide the 

written verification as ordered would result in this appeal being submitted without the reporter’s 

record and briefs. See TEX. R. APP. P. 37.3(c), 38.8(b)(4); Sutherland v. State, 658 S.W.2d 169, 
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170 (Tex. Crim. App. 1983); Scotka v. State, 856 S.W.2d 790, 791 n.1 (Tex. App.—San Antonio 

1993, no pet.); see also Turner v. State, No. 05-10-00182-CR, 2011 WL 522932, at *1 (Tex. 

App.—Dallas Feb. 16, 2011, no pet.) (not designated for publication). Because appellant did not 

comply with our order or otherwise communicate with the Court about the appeal, the Court again 

ordered the case submitted on the existing record.

We do not have authority to dismiss a pending criminal appeal unless the appellant either 

files a motion to dismiss the appeal or escapes from custody. See TEX. R. APP. P. 42.2(a), 42.4. 

When an appellant abandons an appeal, we may submit the appeal and consider it upon the existing 

record. See Sutherland, 658 S.W.2d at 170; Scotka, 856 S.W.2d at 791 n.1; see also Turner, 2011 

WL 522932, at *1. The Court reviews the existing record for fundamental error. See Lott v. State, 

874 S.W.2d 687, 688 (Tex. Crim. App. 1994); Burton v. State, 267 S.W.3d 101, 103 (Tex. App.—

Corpus Christi 2008, no pet.) (citing Saldano v. State, 70 S.W.3d 873, 887–88 (Tex. Crim. App. 

2002) (listing fundamental errors)).

The clerk’s record has been filed. There is no reporter’s record or brief. Without a brief, 

no issues are before us. In the interest of justice, we have reviewed the clerk’s record for 

fundamental error and have found none. See Burton, 267 S.W.3d at 103.

We affirm the trial court’s judgment.

Do Not Publish

TEX. R. APP. P. 47.2(b)

190356F.U05

/Erin A. Nowell/

ERIN A. NOWELL

JUSTICE
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Court of Appeals

Fifth District of Texas at Dallas

JUDGMENT

BOBBY BRUNER, Appellant

No. 05-19-00356-CR V.

THE STATE OF TEXAS, Appellee

On Appeal from the County Criminal Court 

No. 3, Dallas County, Texas

Trial Court Cause No. MB16-31477-C.

Opinion delivered by Justice Nowell, 

Justices Myers and Osborne participating.

Based on the Court’s opinion of this date, the judgment of the trial court is AFFIRMED.

Judgment entered this 23rd day of September, 2019.