Opinion
No. 10-15-00417-CR
03-24-2016
TWISHEKA SHEREE DAVENPORT, Appellant v. THE STATE OF TEXAS, Appellee
From the 85th District Court Brazos County, Texas
Trial Court No. 14-05914-CRF-85
ABATEMENT ORDER
On December 18, 2014, appellant, Twisheka Sheree Davenport, was charged by indictment with theft of less than $1,500 with priors. See TEX. PENAL CODE ANN. § 31.03 (West Supp. 2015). Pursuant to a plea agreement with the State, appellant pleaded guilty to the charged offense in exchange for a recommendation of a two-year sentence in state jail to be probated for three years, as well as several other conditions. The trial court accepted appellant's guilty plea, sentenced her to two years' confinement in state jail, suspended the sentence, and placed appellant on community supervision for three years. The trial court also imposed the conditions recommended by the State.
Thereafter, the State filed a motion to revoke appellant's community supervision, alleging numerous violations of the terms and conditions of the community supervision. After a hearing, the trial court concluded that the allegations in the State's motion to revoke were true. The trial court sentenced appellant to two years' incarceration in the State Jail Division of the Texas Department of Criminal Justice and certified her right of appeal.
Appellant's appointed counsel filed a notice of appeal on November 25, 2015. Thereafter, on February 4, 2016, appellant's appointed counsel filed a motion to dismiss this matter. And though the motion to dismiss was signed by counsel, appellant's signature was missing. See TEX. R. APP. P. 42.2(a) ("At any time before the appellate court's decision, the appellate court may dismiss the appeal upon the appellant's motion. The appellant and his or her attorney must sign the written motion to dismiss and file it in duplicate with the appellate clerk . . . ."). In a February 12, 2016 letter, we notified appellant's appointed counsel that we could not grant the motion to dismiss because appellant had not signed the motion. See id.; see also Hartsell v. State, 143 S.W.3d 233, 234-35 (Tex. App.—Waco 2004, no pet.) (mem. op.) (Gray, J., dissenting); Parker v. State, 63 S.W.3d 593, 593 (Tex. App.—Waco 2002, order); see also Espinosa v. State, No. 10-06-00070-CR, 2006 Tex. App. LEXIS 4024, at **1-2 (Tex. App.—Waco May 10, 2006, no pet.) (mem. op., not designated for publication). Additionally, we requested that appellant's appointed counsel provide within fourteen days of February 12, 2016: (1) a motion to dismiss signed by both appellant and counsel; or (2) a status update. We have not had any contact with appellant or her counsel since the filing of the motion to dismiss.
We abate this appeal to the trial court to conduct a hearing to: (1) determine whether appellant wishes to proceed with the appeal; and (2) whether appellant is receiving effective assistance of counsel. The trial court shall conduct the hearing within twenty-one (21) days after the date of this order. The trial court clerk and court reporter shall file supplemental records within thirty-five (35) days after the date of this order.
PER CURIAM Before Chief Justice Gray, Justice Davis, and Justice Scoggins
Appeal abated
Opinion delivered and filed March 24, 2016
Do not publish