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Richardson v. State

State of Texas in the Fourteenth Court of Appeals
Aug 22, 2017
NO. 14-17-00329-CR (Tex. App. Aug. 22, 2017)

Opinion

NO. 14-17-00329-CR

08-22-2017

DARIEN DEVUNTE RICHARDSON, Appellant v. THE STATE OF TEXAS, Appellee


On Appeal from the 338th District Court Harris County, Texas
Trial Court Cause No. 1531346

ORDER

This appeal was dismissed on June 29, 2017, for lack of jurisdiction. Appellant's appointed counsel filed a motion for rehearing on July 6, 2017. Appellant, acting pro se, filed a "motion to dismiss" on August 8, 2017. We deny both motions.

Motion for Rehearing

Counsel does not dispute our conclusion that we lack jurisdiction. Rather, he complains of the timing of the dismissal. Counsel asserts this court erred in submitting the appeal and dismissing it the next day. He contends we were required to provide twenty-one days' notice of submission. See Tex. R. App. P. 39.8.

Texas Rule of Appellate Procedure 42.3 requires us to provide ten days' notice of possible involuntary dismissal of a civil appeal. See Tex. R. App. P. 42.3. Involuntary dismissal of a civil appeal means dismissal for lack of jurisdiction, lack of prosecution, or failure to comply with a court order. Tex. R. App. P. 42.3(a), (b), (c). Counsel cites no authority, and we have found none, to suggest a court of appeals must also give notice of involuntary dismissal of a criminal appeal. Rule 42.4 governs involuntary dismissal of a criminal appeal but does not contain a notice requirement. Further, Rule 42.4 speaks only of dismissal based on escape, not for lack of jurisdiction.

The submission rule, Rule 39.8, require us to provide twenty-one days' notice before considering the appeal based on the briefs and, in some cases, oral arguments. But we know of no authority to suggest the submission rule requires such notice before dismissing the appeal. Indeed, construing Rule 39.8 to require submission notice before involuntary dismissal of a criminal appeal would effectively add a notice requirement to Rule 42.4.

We deny the motion for rehearing.

Pro Se "Motion to Dismiss"

On August 8, 2017, appellant, acting pro se, filed a handwritten motion to dismiss the appeal. The motion states that the bases for dismissal are "other" and "newly filed information." The motion contains the following paragraph:

Explaination [sic]: Asking that this case be dismissed on appeal due to baby mother has confessed that I didn't stab her and it's along the guide lines of deadly conduct. Im [sic] asking that this case be re-filed as
deadly conduct and comes [sic] to the agreement of both sides that the defendant is willing to take up to 2 yrs state jail or a year county time. The defendant is also asking for all his back time from the day of incarceration.

Appellant's pro se motion must be denied for several reasons. First, appellant is not entitled to hybrid representation. That is, because he is represented by counsel, the court need not consider appellant's pro se filings. Patrick v. State, 906 S.W. 2d 481, 498 (Tex. Crim. App. 1995). Second, though titled "motion to dismiss," the motion's substance shows that appellant believes his conviction and sentence should be modified. That is inconsistent with a voluntary dismissal of an appeal, the result of which is that the judgment will remain undisturbed. See Tex. R. App. P. 42.2. Third, if we construe the motion as a request for voluntary dismissal, the motion does not comply with Rule 42.2(b). Rule 42.2(b) forbids the court from dismissing an appeal on appellant's motion after the court's opinion is issued unless all parties consent. Id.; Burleson v. State, 97 S.W.3d 640, 641 (Tex. App.—Waco 2002, no pet.) (mem. op.) (per curiam). The motion does not indicate whether the State has consented.

We deny appellant's pro se motion to dismiss.

PER CURIAM Panel consists of Justices Christopher, Brown, and Wise.


Summaries of

Richardson v. State

State of Texas in the Fourteenth Court of Appeals
Aug 22, 2017
NO. 14-17-00329-CR (Tex. App. Aug. 22, 2017)
Case details for

Richardson v. State

Case Details

Full title:DARIEN DEVUNTE RICHARDSON, Appellant v. THE STATE OF TEXAS, Appellee

Court:State of Texas in the Fourteenth Court of Appeals

Date published: Aug 22, 2017

Citations

NO. 14-17-00329-CR (Tex. App. Aug. 22, 2017)