Summary
finding compliance with a motion to dismiss appeal, together with its accompanying affidavit, even though defendant did not sign the motion itself, where defendant signed the affidavit in which he swore to having read the motion and acknowledged that the facts contained in the motion were true and correct
Summary of this case from In re S.W.OOpinion
No. 10-99-068-CR.
May 5, 1999.
Appeal from the 54th District Court, McLennan County, George Allen, J.
Robert T. Swanton, Jr., Waco, for appellant.
John W. Segrest, Criminal Dist. Atty., Waco, for appellee.
Before Chief Justice DAVIS, Justice VANCE, and Justice GRAY.
MEMORANDUM OPINION
Appellant Torrance White was convicted of possession of a controlled substance and sentenced to ten years in prison, probated. The trial court revoked appellant's probation and assessed punishment at ten years' imprisonment plus a $500.00 fine. From this probation revocation, White filed a notice of appeal. He now seeks to dismiss his appeal.
In relevant portion, Rule 42.2 of the Texas Rules of Appellate Procedure states:
(a) At any time before the appellate court's decision, the appellate court may dismiss the appeal if the appellant withdraws his or her notice of appeal. The appellant and his or her attorney must sign the written withdrawal and file it in duplicate with the appellate clerk, who must immediately send the duplicate copy to the trial court clerk.
TEX.R.APP. P. 42.2 (a). We have not issued a decision in this appeal. The motion is signed by White's attorney.
Although White did not sign the motion itself, he did sign an affidavit in which he swore to having read the motion and acknowledged that the facts contained in the motion are true and correct. We find that the motion and affidavit; substantially comply with the Rule requiring that both the appellant and the attorney sign the motion to dismiss an appeal. TEX.R.APP. P. 42.2. Thus, the motion meets the requirements of the Rule and is granted.
White's appeal is dismissed.