Opinion
No. 01-04-00162-CR
Opinion issued September 3, 2009. DO NOT PUBLISH. TEX. R. APP. P. 47.2.
On Appeal from the 240th District court, Fort Bend County, Texas, Trial Court Cause No. 37195.
Panel consists of Justices JENNINGS, ALCALA, and HIGLEY.
MEMORANDUM OPINION
Appellant, Theodoro Martinez, Jr., pleaded guilty to the offense of indecency with a child. Pursuant to a plea bargain agreement, the trial court deferred adjudication of guilt, and placed appellant on community supervision for seven years. The State subsequently filed a motion to adjudicate guilt. After a hearing, the trial court found true the allegations in the State's motion. The court found appellant guilty of the original charge, and sentenced him to confinement for 15 years. Appellant filed timely notice of appeal. We have abated this appeal on three separate occasions. We first abated and remanded the case to the trial court because the complete record was not timely filed. The case was abated and remanded a second time because appellant's brief was not timely filed. On March 12, 2009, we issued our third order of abatement because no brief had been filed. Our third order of abatement requested that the trial court determine whether or not appellant desired to pursue his appeal and for the court to determine why no brief had been filed on appellant's behalf. The trial court conducted a hearing, and on May 21, 2009 appointed counsel, Cary Faden, to represent appellant. On May 27, 2009, during the period of our third order of abatement, the State, with the agreement of appellant, filed a motion to re-open the punishment hearing in cause number 37195. The trial court granted the motion and conducted a sentencing hearing on May 27, 2009. At the hearing, the appellant was sentenced to confinement for six years and 116 days. On May 27, 2009, appellant waived his right of appeal in a document he signed and acknowledged by swearing to its accuracy before the clerk of the court. The waiver was in a document styled "Defendant's waiver of right to appeal" that includes the statement: I voluntarily waive my right to file a motion for new trial, a motion in arrest of judgment, a notice of appeal, or any right to appeal that I may have in this cause of action." On June 2, 2009, appellant filed a motion to dismiss his appeal of the original judgment and sentence in trial court cause number 37195. The motion does not include the signature of appellant Martinez. See TEX. R. APP. P. 42.2(a). However, based on appellant's expressed desire to forego pursuit of his appeal, as evidenced by his May 27, 2009 agreement to re-sentencing and his written waiver of appeal, we conclude that in accordance with Rule 2, good cause exists to suspend the signature requirement of Rule 42.2(a). See TEX. R. APP. P. 2. Accordingly, we reinstate the appeal and grant the motion to dismiss. Any pending motions are denied as moot.
Theodoro Martinez, Jr. is also known as Teodoro Martinez, Jr.
The State's motion to reopen punishment provides in part:
The defendant was indicted for the third degree felony offense of indecency with a child by exposure. Pursuant toa plea agreement, the defendant was placed on deferred adjudication probation for seven years . . . the State filed a motion to adjudicate the defendant's guilt. The defendant pleaded true to the allegations in the State's motion and he was found guilty of the offense of indecency with a child by contact, a second degree felony. Further, the defendant was sentenced to 15 years in prison, which is not within the proscribed punishment range for a third degree felony. The defendant's newly-appointed appellate counsel, Cary M. Faden, brought this to the State's attention on May 21, 2009. This case was immediately set on a docket and on May 27, 2009, the State, Mr. Faden, and the Defendant agreed to reopen the Defendant's case on punishment only to correct the error in the Defendant's original punishment . . . all reached an agreement whereby the defendant will be re-sentenced to six years, 116 days confinement in the Texas Department of Criminal Justice Institutional Division, with credit for the amount of time the defendant has already served: six years, 116 days.