Antonio Luviano v. State ( 2011 )

Opinion issued November 10, 2011.

In The

Court of Appeals

For The

First District of Texas

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NO. 01-09-00755-CR

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ANTONIO LUVIANO, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 351st District Court

Harris County, Texas

Trial Court Cause No. 1179187

MEMORANDUM OPINION

Appellant, Antonio Luviano, pleaded guilty to the offense of possession of marijuana.  The trial court found appellant guilty and sentenced appellant to 12 years’ confinement. Appellant filed a pro se notice of appeal.  We dismiss the appeal.

On April 25, 2011, this case was abated to allow the trial court to amend the certification of defendant’s right of appeal, and make findings on whether appellant desires to pursue this appeal, and, if so, determine indigence and appoint counsel. The appellant appeared without counsel, and stated for the record that he did not wish to appeal the case. Although appellant has not signed a written motion to dismiss the appeal, we rely on the hearing record to support compliance with Texas Rules of Appellate Procedure.  See Tex. R. App. P. 42.2(a).

Rule of Appellate Procedure 42.2 states that appellant and his attorney “must sign” a motion to dismiss.  Tex. R. App. P. 42.2(a).   Appellant is pro se, and did not sign a motion to dismiss.  The record reflects, however, that appellant stated at the hearing that he did not desire to pursue this appeal, and the trial court found that appellant “has freely and voluntarily decided not to appeal his case.”  We may suspend a rule’s operation in a particular case to expedite a decision or for other good cause.  See Tex. R. App. P. 2; Conners v. State, 966 S.W.2d 108, 110–11 (Tex. App.—Houston [1st Dist.] 1998, pet. ref’d).  We conclude that appellant’s statements provide good cause for suspending the requirement that appellant sign a motion to dismiss. See Tex. R. App. P. 2; Conners, 966 S.W.2d at 110–11.  

Accordingly, we dismiss the appeal.  See Tex. R. App. P. 43.2(f).  We dismiss any pending motions as moot.

We direct the Clerk to issue the mandate within 10 days of the date of this opinion.  See Tex. R. App. P. 18.1.

PER CURIAM

Panel consists of Chief Justice Radack and Justices Bland and Huddle.

Do not publish.  Tex. R. App. P. 47.2(b).