Brennan v. State

Full title: JAMES BRENNAN, Appellant, v. THE STATE OF TEXAS, Appellee

Court: Court of Appeals of Texas, Eighth District, El Paso

Date published: Jun 26, 2003

No. 08-03-00118-CR (Tex. App. Jun. 26, 2003)

Opinion

No. 08-03-00118-CR

June 26, 2003 (Do Not Publish)

Appeal from 168th District Court of El Paso County, Texas (TC# 20010D00479).

Before Panel No. 2, BARAJAS, C.J., McCLURE, and CHEW, JJ.

MEMORANDUM OPINION

ANN CRAWFORD McCLURE, Justice

James Brennan appeals from his conviction for possession of a controlled substance. We dismiss the appeal on our own motion pursuant to Tex.R.App.P. 25.2(d). Further, we deny as moot a motion to dismiss this appeal pursuant to Tex.R.App.P. 42.2(a). On March 25, 2003, the Clerk's Office informed Appellant that his notice of appeal failed to comply with Tex.R.App.P. 25.2(d) because it did not contain the trial court's certification of the defendant's right to appeal. The letter further notified Appellant that his appeal would be dismissed if he failed to file an amended notice of appeal correcting the defect. Appellant has not amended his notice of appeal. Instead, Appellant's attorney has filed a motion to dismiss the appeal pursuant to Tex.R.App.P. 42.2(a) which provides that:

(a) At any time before the appellate court's decision, the appellate court may dismiss the appeal if the party that appealed withdraws its notice of appeal — by filing a written withdrawal in duplicate with the appellate clerk, who must immediately send the duplicate copy to the trial court clerk. An appellant must personally sign the written withdrawal.

Appellant has not signed the motion to dismiss as required by the rule because counsel has been unable to locate him. The motion states that counsel initially filed the notice of appeal with the intention of challenging a denial of a pretrial motion to suppress. Counsel has since learned that no hearing was held on the motion to suppress and there is no adverse ruling to appeal. Without Appellant's signature or a statement made in open court by Appellant that he no longer desires to appeal, we are unable to grant the motion to dismiss pursuant to Rule 42.2(a). Rather than denying the motion outright, we will deny it as moot because there is an independent ground for dismissal of the appeal. Appellant's failure to comply with our request that he amend his notice of appeal to include the trial court's certification of the defendant's right to appeal requires dismissal of the appeal pursuant to Rule 25.2(d). See Tex.R.App.P. 25.2(d). The appeal is hereby dismissed.