Russell William Detwiler v. State

In the
Court of Appeals
Second Appellate District of Texas
at Fort Worth
___________________________
No. 02-18-00457-CR
___________________________
RUSSELL WILLIAM DETWILER, Appellant
V.
THE STATE OF TEXAS
On Appeal from the 78th District Court
Wichita County, Texas
Trial Court No. 59,150-B
Before Kerr, Pittman, and Birdwell, JJ.
Memorandum Opinion by Justice Kerr
MEMORANDUM OPINION
Without a plea bargain and while represented by counsel, Russell William
Detwiler pleaded nolo contendere to indecency with a child by contact. See Tex. Penal
Code Ann. § 21.11(a)(1). The trial court found Detwiler guilty and sentenced him to
five years’ imprisonment. Two weeks later, Detwiler filed a pro se notice of appeal.
When questions arose about Detwiler’s indigency and whether he was entitled
to appointed counsel, we abated the appeal and remanded the case to the trial court to
determine, among other things, whether Detwiler wished to continue the appeal.
Complying with our order, the trial court conducted a hearing with Detwiler—but no
defense counsel—present.1 On the record, Detwiler agreed that when previously
before the court, he had told his trial counsel that he did not want to appeal; asked
about his present desire, Detwiler stated that his wish was still not to appeal. The trial
court then signed written findings, one of which was that Detwiler did not want to
prosecute his appeal. We have both the reporter’s record of the hearing and the clerk’s
record containing the trial court’s findings.
Although Detwiler has stated on the record that he does not want to prosecute
his appeal, he has not filed a motion to voluntarily dismiss it as required by rule
42.2(a) of the appellate rules of procedure. See Tex. R. App. P. 42.2(a).
1
The plea hearing was on October 4, 2018. On October 15, the trial court
signed an order allowing Detwiler’s trial counsel to withdraw, and on October 22, the
trial court denied Detwiler’s request for appointed counsel because it found that he
was not indigent.
2
But based on the reporter’s and clerk’s records filed with us, we hold that good
cause exists to suspend rule 42.2(a) in this case. See Tex. R. App. P. 2; Robertson v. State,
No. 01-11-00743-CR, 2012 WL 5285913, at *1 (Tex. App.—Houston [1st Dist.] Oct.
25, 2012, no pet.) (mem. op., not designated for publication); Lawson v. State, No. 02-
06-00204-CR, 2007 WL 495165, at *1 (Tex. App.—Fort Worth Feb. 15, 2007, no
pet.) (mem. op., not designated for publication). As Detwiler stated and as the trial
court found, we hold that Detwiler does not want to pursue this appeal.
Thus, we dismiss this appeal. See also Fountain v. State, Nos. 02-14-00341-CR,
02-14-00342-CR, 2015 WL 3637961, at *1 (Tex. App.—Fort Worth June 11, 2015, no
pet.) (mem. op., not designated for publication); Wilson v. State, No. 02-13-00210-CR,
2014 WL 1394628, at *1 (Tex. App.—Fort Worth Apr. 10, 2014, no pet.) (mem. op.,
not designated for publication); Palmer v. State, No. 02-12-000569-CR, 2013 WL
6147836, at *1 (Tex. App.—Fort Worth Nov. 21, 2013, no pet.) (mem. op., not
designated for publication).
/s/ Elizabeth Kerr
Elizabeth Kerr
Justice
Do Not Publish
Tex. R. App. P. 47.2(b)
Delivered: February 28, 2019
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