Summary
suspending operation of rule 42 and construing abatement record as appellant's motion to dismiss appeal
Summary of this case from Perry v. StateOpinion
NO. 01-17-00343-CR
04-05-2018
HUNG TRUONG, Appellant v. THE STATE OF TEXAS, Appellee
On Appeal from 339th District Court Harris County, Texas
Trial Court Cause No. 1172979
MEMORANDUM OPINION
Appellant, Hung Truong, timely filed a notice of appeal from the trial court's May 1, 2017 order of recommitment to inpatient treatment following a verdict of acquittal by reason of insanity of the offense of manslaughter under trial court cause number 1172979. See TEX. CODE CRIM. PROC. ANN. art. 46C.261 (West 2006) ("the 2017 appeal"). Appellant had previously appealed a similar May 3, 2016 order of recommitment under the same trial court cause number 1172979, which was assigned to appellate cause number 01-16-00390-CR ("the 2016 appeal"). The trial court certified that these were not plea-bargain cases and that appellant had a right of appeal, and appointed the same appellate counsel in each case. See TEX. R. APP. P. 25.2(a)(2).
Because appellant's counsel had failed to timely file a brief in this 2017 appeal, this Court's September 7, 2017 and December 12, 2017 Orders of Abatement had abated this case for a late-brief hearing. See TEX. R. APP. P. 38.8(b)(2). This Court's February 15, 2018 Order of Continuing Abatement had continued the abatement in the 2017 appeal and remanded for the trial court to conduct a hearing on whether appellant wanted to pursue the 2017 or 2016 appeal. On February 27, 2018, a supplemental clerk's record was filed in this Court in both appeals with a docket sheet indicating that, at a February 26, 2018 hearing, the trial court ruled that appellant wanted to withdraw the 2017 appeal and continue with the 2016 appeal.
On March 27, 2018, the abatement hearing record was filed in this Court in both the 2017 and 2016 appeals, for the February 26, 2018 abatement hearing in which appellant did not appear, but counsel for appellant and the State did appear. Appellant's counsel explained that she had not filed the brief in the 2017 appeal because they were waiting on the 2016 opinion, that appellant had informed her that he wanted to withdraw the 2017 appeal to proceed with the 2016 appeal, and counsel for the State had no opposition. The trial court made findings on the record that appellant was still indigent, that his counsel will stay on the case, and that appellant wanted to withdraw this 2017 appeal, but not the 2016 appeal.
Appellant has not filed in this Court a motion to dismiss this 2017 appeal. See TEX. R. APP. P. 42.2(a). However, given appellant's counsel's unopposed and unequivocal statement on the record of the abatement hearing that appellant wanted to dismiss this 2017 appeal, to proceed with the 2016 appeal, we conclude that good cause exists to suspend the operation of rule 42 and to construe this abatement record as appellant's motion to dismiss this appeal. See id. 2, 42.2(a); Conners v. State, 966 S.W.2d 108, 110-11 (Tex. App.—Houston [1st Dist.] 1998, pet. ref'd) (suspending rule 42 and dismissing appeal based on appellant's unequivocal testimony at abatement hearing desiring dismissal of appeal). We have not yet issued a decision in this appeal. See TEX. R. APP. P. 42.2(b).
Accordingly, we reinstate this 2017 appeal and grant appellant's motion to dismiss the appeal. See TEX. R. APP. P. 42.2(a), 43.2(f).
PER CURIAM Panel consists of Justices Jennings, Keyes, and Higley. Do not publish. TEX. R. APP. P. 47.2(b).