Javier Moreno v. the State of Texas

Opinion issued March 16, 2023
In The
Court of Appeals
For The
First District of Texas
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NO. 01-22-00379-CR
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JAVIER MORENO, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 412th District Court
Brazoria County, Texas
Trial Court Case No. 73664-A
MEMORANDUM OPINION
After appellant, Javier Moreno, pleaded guilty to the felony offense of
indecency with a child,1 the trial court deferred adjudication of appellant’s guilt and
placed him on community supervision for ten years. The State, alleging numerous
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See TEX. PENAL CODE ANN. § 21.11.
violations of the conditions of appellant’s community supervision, subsequently
moved to adjudicate his guilt. After a hearing, the trial court found numerous
allegations true, found appellant guilty, and assessed his punishment at confinement
for twenty years. The trial court’s Judgment was entered on May 17, 2022.
Appellant timely filed a notice of appeal.
Appellant’s brief was due to be filed with this Court on July 20, 2022. See
TEX. R. APP. P. 38.6(a). Appellant failed to timely file his brief. On August 22,
2022, the Clerk of this Court notified appellant’s court-appointed appellate counsel,
Michael C. Diaz, that the time for filing a brief had passed and, unless the Court
received a motion for extension of time, with appellant’s brief, or a motion for
extension of time by September 1, 2022, the Court would be required to abate the
appeal and remand for the trial court to hold a hearing pursuant to Texas Rule of
Appellate Procedure 38.8. See TEX. R. APP. P. 10.5(b), 38.8(b)(2). No response was
received, and no brief was filed.
Accordingly, on February 14, 2023, the Court abated this appeal and
remanded the case to the trial court to hold a hearing to determine, among other
things, whether appellant wished to prosecute his appeal. See TEX. R. APP. P.
38.8(b)(3). On March 6, 2023, the trial court held an abatement hearing at which
appellant, his court-appointed appellate counsel, and the State were present. Also
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on March 6, 2023, a supplemental reporter’s record, including a stenographic
transcript of the abatement hearing, was filed with this Court.
During the abatement hearing, the trial court noted that the case was remanded
to “conduct a hearing about [appellant’s] desire to appeal or not appeal.” After
swearing in appellant, the trial court directed questioning to appellant, asking
appellant if it was “correct” that he “no longer wish[ed] or desire[d] to prosecute the
appeal in” the underlying trial court case. Appellant responded “[y]es” to the trial
court’s question, confirming that he no longer wished to prosecute this appeal.
Texas Rule of Appellate Procedure 42.2 states that an appellant and his
attorney “must sign” a motion to dismiss a criminal appeal. TEX. R. APP. P. 42.2(a).
Appellant has not filed a motion to dismiss. However, based on appellant’s
statements on the record at the abatement hearing, we conclude that good cause
exists to suspend the operation of rule 42 and to construe the abatement record as
appellant’s motion to dismiss his appeal. TEX. R. APP. P. 2, 42; Conners v. State,
966 S.W.2d 108, 110–11 (Tex. App.—Houston [1st Dist.] 1998, pet. ref’d); see, e.g.,
Truong v. State, No. 01-17-00343-CR, 2018 WL 1630177, at *1 (Tex. App.—
Houston [1st Dist.] Apr. 5, 2018, no pet.) (mem. op., not designated for publication)
(suspending operation of rule 42 and construing abatement record as appellant’s
motion to dismiss appeal); Luviano v. State, No. 01-09-00755-CR, 2011 WL
5428964, at *1 (Tex. App.—Houston [1st Dist.] Nov. 10, 2011, no pet.) (mem. op.,
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not designated for publication) (concluding appellant’s statements provided good
cause to suspend rule 42 requirement that appellant sign motion to dismiss and
dismissing appeal). We have not yet issued a decision in the appeal. See TEX. R.
APP. P. 42.2(b).
Accordingly, we reinstate the appeal, grant appellant’s motion, and dismiss
the appeal. See TEX. R. APP. P. 43.2(f). We dismiss all other pending motions as
moot.
PER CURIAM
Panel consists of Justices Landau, Countiss, and Guerra.
Do not publish. TEX. R. APP. P. 47.2(b).
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