Opinion
No. 04-17-00743-CR
04-11-2018
EX PARTE Derrick Lee HUDSON
MEMORANDUM OPINION
From the 452nd District Court, Kimble County, Texas
Trial Court No. 2014-DCR-0507-W
Honorable Robert Hofmann, Judge Presiding PER CURIAM Sitting: Patricia O. Alvarez, Justice Luz Elena D. Chapa, Justice Irene Rios, Justice DISMISSED
In October 2014, Appellant Derrick Lee Hudson was indicted for possession of a controlled substance, penalty group 2, in an amount of less than one gram. Subsequently, the trial court twice found Appellant was not competent to stand trial, and it twice ordered Appellant committed to a state hospital.
On October 4, 2017, Appellant filed a petition for writ of habeas corpus in the trial court. He alleged he was being illegally restrained because he was not receiving appropriate treatment, and thus his confinement bore no relation to the purpose for his commitment.
After a hearing, on November 1, 2017, the trial court found Appellant was not entitled to the relief sought and denied his petition. Appellant filed a notice of appeal.
On November 16, 2017, based on the reports from a state hospital staff psychiatrist and a staff psychologist advising the court that Appellant was likely competent to stand trial, the trial court found Appellant competent to stand trial. The trial court reinstated the criminal proceeding, and later sentenced Appellant to time served.
On December 6, 2017, Appellant's counsel filed a motion to dismiss this appeal, but because it was not signed by Appellant, this court denied the motion. See TEX. R. APP. P. 42.2(a).
On February 7, 2018, Appellant's court-appointed counsel advised this court that Appellant pled guilty to the underlying offense, was sentenced to time served, and released. Counsel stated that Appellant agreed to dismiss his appeal after he was released from jail, but since Appellant was released, counsel has not been able to contact Appellant. See id.
On February 14, 2018, we abated this appeal and remanded the cause to the trial court. See TEX. R. APP. P. 38.8(b); Tippett v. State, 2 S.W.3d 462, 463 (Tex. App.—San Antonio 1999, no pet.). We ordered the trial court to conduct a hearing in compliance with Rule 38.8(b) to answer the following question: Does Appellant desire to prosecute his appeal?
The trial court held a hearing, but Appellant did not appear. Appellant's court-appointed counsel testified that he sent Appellant a motion to dismiss for Appellant to sign by certified mail, and Appellant signed the receipt accepting delivery of the motion. But Appellant did not sign the motion or contact his counsel. Counsel testified that Appellant had previously stated that if he was sentenced to time served and then released, Appellant would then want to dismiss his appeal.
The trial court found that Appellant does not desire to prosecute his appeal, and it concluded that this appeal should be dismissed.
We reinstate this appeal. Having reviewed the appellate record, including the supplemental records of the trial court's hearing on whether Appellant desires to dismiss his appeal, we also conclude that Appellant desires to dismiss this appeal. See TEX. R. APP. P. 42.2(a); In re S.W.O., 230 S.W.3d 205, 205 (Tex. App.—Houston [14th Dist.] 2006, no pet.); Hartsell v. State, 143 S.W.3d 233, 234 (Tex. App.—Waco 2004, no pet.) (mem. op.).
Accordingly, for good cause, we suspend Rule 42.2(a)'s requirement that Appellant personally sign the motion to dismiss, and we dismiss this appeal. See TEX. R. APP. P. 2, 42.2(a); In re S.W.O., 230 S.W.3d at 205; Hartsell, 143 S.W.3d at 234.
PER CURIAM DO NOT PUBLISH