David Middleman v. State ( 2018 )

COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 02-17-00359-CR
DAVID MIDDLEMAN APPELLANT
V.
THE STATE OF TEXAS STATE
----------
FROM THE 431ST DISTRICT COURT OF DENTON COUNTY
TRIAL COURT NO. F16-2710-431
----------
MEMORANDUM OPINION1
----------
After receiving Appellant’s Counsel’s “Motion to Withdraw as Counsel for
Appellant,” we abated this appeal and remanded this case to the trial court for a
hearing to determine whether Appellant wished to continue this appeal. Two
days before the hearing, Appellant’s counsel filed with this court a motion to
dismiss Appellant’s appeal, but the motion did not comply with rule 42.2(a)
1
See Tex. R. App. P. 47.4.
because it included limitations beside Appellant’s signature.2 See Tex. R. App.
P. 42.2(a). Two days later at the abatement hearing, the trial court noted that it
had received Appellant’s handwritten motion to withdraw his appeal.3 The trial
court confirmed that Appellant no longer wishes to pursue this appeal.
Rule 42.2(a) of the Texas Rules of Appellate Procedure provides that an
appeal may be dismissed if an appellant files a motion to dismiss the appeal
signed by both the appellant and his attorney. See id. The purpose of that
requirement is to protect an appellant from having his appeal dismissed by
counsel without his consent and to ensure that counsel had notice of the motion
in order to advise the client on the consequences of a dismissal. Conners v.
State, 966 S.W.2d 108, 110 (Tex. App.—Houston [1st Dist.] 1998, pet. ref’d); see
Jones v. State, No. 07-15-00371-CR, 2016 WL 902960, at *1 (Tex. App.—
Amarillo Mar. 7, 2016, no pet.) (mem. op., not designated for publication).
Moreover, the decision of whether to take an appeal from a criminal conviction is
personal to the accused. See Conners, 966 S.W.2d at 110 (citing Jones v.
Barnes, 463 U.S. 745, 751, 103 S. Ct. 3308, 3312 (1983)).
Based on the record before us, and no decision of this court having been
delivered, we dismiss this appeal at Appellant’s request and dismiss counsel’s
2
After Appellant’s signature, the following appears: “without recourse all
rights reserved.”
3
Appellant’s handwritten motion to withdraw his appeal appears in the
supplemental clerk’s record that was filed in this court after the abatement
hearing.
2
motion to withdraw as moot. See Tex. R. App. P. 43.2(f); Jones, 2016 WL
902960, at *1; see also Terry v. State, No. 03-14-00555-CR, 2016 WL 4506154,
at *1 (Tex. App.—Austin Aug. 25, 2016, no pet.) (mem. op., not designated for
publication) (dismissing appeal at appellant’s request and dismissing counsel’s
motion to withdraw as moot).
/s/ Sue Walker
SUE WALKER
JUSTICE
PANEL: WALKER, MEIER, and GABRIEL, JJ.
DO NOT PUBLISH
Tex. R. App. P. 47.2(b)
DELIVERED: June 21, 2018
3