Opinion
NO. 14-13-00700-CR
01-07-2014
ERIC CLAYTON HARPER, Appellant v. THE STATE OF TEXAS, Appellee
Dismissed and Memorandum Opinion filed January 7, 2014.
On Appeal from the 56th District Court
Galveston County, Texas
Trial Court Cause No. 11CR1058
MEMORANDUM OPINION
Appellant filed a pro se notice of appeal from a judgment adjudicating his guilt for possession of a controlled substance and sentencing him to confinement for twenty months in the State Jail Division of the Texas Department of Criminal Justice. The trial court certified that appellant has the right to appeal and appointed appellate counsel to represent him.
The appellate record was timely filed, but appellant did not file a brief or motion for extension of time to file a brief. Pursuant to Texas Rule of Appellate Procedure 38.8, this court abated the appeal and directed the trial court to conduct a hearing to determine the reason for appellant's failure to file a brief.
On December 3, 2013, the trial court filed its findings of fact and conclusions of law and a record of the abatement hearing. At the hearing, appellant testified that he no longer wished to continue his appeal and asked that his notice of appeal be withdrawn. Appellant's counsel was present at the hearing and informed the trial court that she would file an appropriate motion with this court asking to dismiss the appeal. The trial court found that appellant does not wish to prosecute his appeal and recommended that the case be dismissed. To date, no motion to dismiss has been filed.
Texas Rule of Appellate Procedure 42.2 governs the procedure for voluntary dismissal of an appeal in a criminal case. The rule provides that "[a]t any time before the appellate court's decision, the appellate court may dismiss the appeal upon the appellant's motion." Tex. R. App. P. 42.2(a). We may suspend a rule's operation in a particular case to expedite a decision or for other good cause. Tex. R. App. P. 2.
We find good cause exists to apply Rule 2 and suspend the requirement for a written motion to dismiss the appeal in this case. After considering appellant's testimony at the abatement hearing and the trial court's findings and recommendation, we grant appellant's request to withdraw his appeal. We order the appeal dismissed.
PER CURIAM
Panel consists of Chief Justice Frost and Justices Jamison and Wise.
Do Not Publish — Tex. R. App. P. 47.2(b).