Alakhras v. State
In Alakhras v. State, 73 S.W.3d 434 (Tex. App. - Houston [1st Dist.] 2002, no pet.), retained counsel filed the notice of appeal, but subsequently notified the appellate court that he did not represent the appellant on appeal and had been unable to contact the appellant. Id. at 435.
The appellate court instructed the trial court to conduct a hearing, but the trial court reported that a hearing was impossible because the appellant had been deported. Id.
The appellate court noted that the appellant had not attempted in any way to advance his appeal, either before or after his deportation. He never claimed to be indigent, yet he did not retain counsel to file a brief or make arrangements for preparation of the reporter's record, which was due eleven weeks before his deportation. Id. at 435-36.
Based on these facts, the appellate court suspended the requirement that the trial court determine whether the appellant wished to prosecute the appeal. Id. at 436 (citing Tex. R. App. P. 2).
The appellate court made its own determination that the appellant no longer wished to prosecute the appeal and reviewed the clerk's record for fundamental error. Id.