Rafael Antonio Rosado v. the State of Texas ( 2024 )

TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN
NO. 03-24-00052-CR
Rafael Antonio Rosado, Appellant
v.
The State of Texas, Appellee
FROM THE 368TH DISTRICT COURT OF WILLIAMSON COUNTY
NO. 22-1397-K368,
THE HONORABLE SARAH SOELDNER BRUCHMILLER, JUDGE PRESIDING
MEMORANDUM OPINION
Appellant Rafael Antonio Rosado has filed a “motion to abate and dismiss the
appeal,” which we construe as a motion to dismiss his appeal.1 We grant the motion and dismiss
the appeal. See Tex. R. App. P. 42.2(a).
__________________________________________
Gisela D. Triana, Justice
1
We construe this as a motion to dismiss because in the motion, counsel makes no
argument for abatement. Instead, counsel argues that dismissal would be appropriate because
“appellant has indicated that he no longer wishes to continue with the appeal.” Moreover,
although appellant has signed a statement attached to the motion requesting that his “appeal be
abated,” he states that he understands that his “existing sentence will stand, and that the appeal
will not go forward.” Those are the effects of a dismissal. Thus, we conclude that in substance,
appellant is requesting dismissal of his appeal. See, e.g., Skinner v. State, 484 S.W.3d 434,
437-38 (Tex. Crim. App. 2016) (explaining that “when construing an order or motion,” courts
must “consider the substance of the filing and not just the label attached to it”); see also Lujan
v. State, Nos. 01-22-00771-CR & 01-22-00772-CR, 2022 WL 17684052, at *1 (Tex. App.—
Houston [1st Dist.] Dec. 15, 2022, no pet.) (per curiam) (mem. op., not designated for
publication) (construing similar motion to “abate and dismiss” appeal as motion to dismiss).
Before Justices Baker, Triana, and Kelly
Dismissed on Appellant’s Motion
Filed: February 22, 2024
Do Not Publish
2