Opinion
No. 14-04-00740-CR
Memorandum Opinion filed September 30, 2004. DO NOT PUBLISH. Tex.R.App.P. 47.2(b).
On Appeal from the 230th District Court Harris County, Texas, Trial Court Cause No. 876,249. Dismissed.
Panel consists of Justices ANDERSON, HUDSON, and FROST.
MEMORANDUM OPINION
Appellant pled nolo contendere to the offense of indecency with a child. In accordance with the plea bargain, appellant was placed on seven years' deferred adjudication probation on May 20, 2002. On June 19, 2002, appellant filed a notice of appeal from the May 20, 2002, order. On June 27, 2002, appellant filed a motion to withdraw the notice of appeal; however, this motion was filed in the trial court. The trial court granted this motion by order dated June 27, 2002. On July 8, 2004, the State moved to adjudicate guilt. The record was filed in this court on August 3, 2004. Because the appellate court has jurisdiction once a notice of appeal is filed, In re Washington, 7 S.W.3d 181, 182 (Tex.App.-Houston [1st Dist.] 1999, orig. proceeding), the motion to withdraw the notice of appeal should have been filed in the appellate court. Once the motion was erroneously filed in the trial court, it should have been forwarded to this court for ruling. Nonetheless, we find there is good cause to consider it now. The motion to withdraw the notice of appeal was personally signed by appellant. See TEX. R. APP. P. 42.2. Because this Court has not delivered an opinion, we grant appellant's motion. Accordingly, we order the appeal dismissed. We direct the Clerk of the Court to issue the mandate of the Court immediately.
The District Clerk did not forward the appeal because the trial court had granted the motion to withdraw the notice of appeal. In June 2004, appellant filed an application for writ of mandamus, claiming the District Clerk had violated a mandatory duty to forward the notice of appeal. A panel of this court granted relief on July 29, 2004. The record was subsequently forwarded to this court.