in the Interest of Rafael Francisco Eguia ( 2002 )

NO. 07-02-0487-CV

IN THE COURT OF APPEALS

FOR THE SEVENTH DISTRICT OF TEXAS

AT AMARILLO

PANEL E

DECEMBER 13, 2002

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IN THE INTEREST OF RAFAEL FRANCISCO EGUIA

_________________________________

FROM THE COUNTY COURT OF FLOYD COUNTY;

NO. 02-28; HONORABLE WILLIAM D. HARDIN , JUDGE

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Before REAVIS and JOHNSON, JJ., and BOYD, SJ. ⁽¹⁾

On November 15, 2002, appellant Rafael Francisco Equia gave notice of appeal from an adverse judgment in the above case. On November 22, 2002, the clerk of this court notified appellant that the requisite filing fee in this matter had not been paid and we would take no further action in the appeal until the fee was paid. He was also warned that the failure to pay the filing fee may result in a dismissal. Tex R. App. P. 42.3(c). Additionally, we notified appellant that he had not filed a docketing statement pursuant to Texas Rule of Appellate Procedure 32.1 and such a statement must be filed within ten days from the date of the notice.

No filing fee has ever been paid, nor has a docketing statement ever been filed. However, on December 9, 2002, we received a motion by appellant stating he no longer wished to pursue the appeal and requesting that it be dismissed. He also certified that he had notified opposing counsel of his intent to dismiss the appeal and was told the motion to dismiss would not be opposed.

Accordingly, this appeal must be, and is hereby dismissed. Having dismissed the appeal at appellant's request, no motion for rehearing will be entertained and our mandate will issue forthwith.

John T. Boyd

Senior Justice

Do not publish.

1. John T. Boyd, Chief Justice (Ret.), Seventh Court of Appeals, sitting by assignment. Tex. Gov't Code Ann. §75.002(a)(1) (Vernon Supp. 2002).

l. The trial court granted the motion. The jury returned guilty verdicts in each of the six cases and assessed punishment at confinement for 99 years and a $10,000 fine in each case. The trial court subsequently ordered all sentences to be served consecutively. Appellant objected to the consecutive nature of the court's judgments. Additionally, appellant filed a motion for new trial again raising his objection to the consecutive nature of the trial court's judgments. This appeal followed.

Appellant contends, and the State agrees, that all six indictments arose out of one criminal episode. See Tex. Penal Code Ann. § 3.01 (Vernon 2003). ⁽¹⁾ Further, appellant states that the indictments were tried in a single criminal action, pursuant to the State's motion filed with the trial court. See § 3.02(a). Inasmuch as the exception to concurrent sentencing found in the Texas Penal Code does not apply to the offenses for which appellant was convicted, the sentences must run concurrently. See § 3.03(a). The State has conceded this issue. Accordingly, the judgments of the trial court are reformed to delete the cumulation orders. Tex. R. App. P. 43.2(b); Robbins v. State, 914 S.W.2d 582, 584 (Tex.Crim.App. 1996). As reformed, the judgments of the trial court are affirmed.

Mackey K. Hancock

Justice

Do not publish.

1. Further reference to the Texas Penal Code will be by reference to § ___.