James Allen Fox v. State ( 2007 )

NO. 07-07-0194-CR

IN THE COURT OF APPEALS

FOR THE SEVENTH DISTRICT OF TEXAS

AT AMARILLO

PANEL A

JUNE 7, 2007

______________________________



JAMES ALLEN FOX, APPELLANT

V.

THE STATE OF TEXAS, APPELLEE



_________________________________

FROM THE 50TH DISTRICT COURT OF KING COUNTY;

NO. 2006-232B; HONORABLE WILLIAM "BILL" HAWKINS HEATLY, JUDGE

_______________________________

Before CAMPBELL and HANCOCK and PIRTLE, JJ.

MEMORANDUM OPINION

Pending before this Court is Appellant James Allen Fox's Motion to Dismiss Appeal by which he requests that his notice of appeal be withdrawn. As required by Rule 42.2(a) of the Texas Rules of Appellate Procedure, the motion is signed by Appellant and his attorney. No decision of this Court having been delivered, the motion is granted and the appeal is dismissed. No motion for rehearing will be entertained and our mandate will issue forthwith.

Accordingly, the appeal is dismissed.

Patrick A. Pirtle

Justice

Do not publish.

brief was due September 15, 2003. By letter dated September 29, 2003, we notified appellant that the due date for the brief had passed, that the brief had not been filed and no motion for extension of time to file had been received by the court. Citing Tex. R. App. Proc. 38.8, the letter also notified appellant that the appeal would be subject to dismissal unless a response reasonably explaining his failure to file a brief, together with a showing that the appellee has not been significantly injured by the failure, was submitted by October 13, 2003.

Both this court's August 18 and September 29 letters have been returned to the court, with the notation "Refused." By telephone conference with the Texas Department of Criminal Justice facility in which appellant is confined, this court's clerk has confirmed that appellant twice refused to accept delivery of either letter. We find that this court's notice to appellant in our August 18 and September 29 letters was effective even though refused. See Barnes v. Frost Nat'l Bank, 840 S.W.2d 747 (Tex.App.-San Antonio 1992, no writ). Appellant has not filed a response to the court's September 29 letter, nor has he since submitted a brief or a motion for extension of time.

Accordingly, having given all parties more than the required ten days' notice, we dismiss the appeal for want of prosecution. Tex. R. App. Proc. 38.8(a)(1); 42.3(b).

James T. Campbell

Justice