Bradley Robert Eddington v. the State of Texas

Opinion

Opinion issued March 16, 2023

In The

Court of Appeals For The

First District of Texas ———————————— NO. 01-21-00424-CR ——————————— BRADLEY ROBERT EDDINGTON, Appellant V. THE STATE OF TEXAS, Appellee

On Appeal from the 212th District Court Galveston County, Texas Trial Court Case No. 18-CR-2578

MEMORANDUM OPINION

After appellant, Bradley Robert Eddington, with an agreed punishment

recommendation from the State, pleaded guilty to the felony offense of assault,1 the

trial court deferred adjudication of appellant’s guilt and placed him on community

1 See TEX. PENAL CODE ANN. § 22.01(a), (b)(2)(A). supervision for three years. The State, alleging numerous 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 five years. The

trial court’s Judgment was entered on June 29, 2021. Appellant timely filed a notice

of appeal.

Appellant’s brief was due to be filed with this Court on September 26, 2022.

See TEX. R. APP. P. 38.6(a). Appellant failed to timely file his brief. On October 19,

2022, the Clerk of this Court notified appellant’s retained counsel, Joseph F. Vinas,

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

October 31, 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 January 10, 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)(2). On January

27, 2023, the trial court held an abatement hearing at which appellant, his retained

appellate counsel, and the State were present. On March 3, 2023, a supplemental

2 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

and the “first thing [the trial court] need[ed] to find out [was] whether [appellant]

wishe[d] to continue with his appeal.” In response to the trial court’s inquiry

regarding whether appellant wished to continue his appeal, appellant stated, on the

record, “Oh, no. No, not at all. No.” Appellant further stated that it was his

“understanding” that his counsel had “canceled” the appeal, but that he kept “getting

things in the mail.” However, appellant reiterated that “no – there’s nothing else

that needs to be done with it.”

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

3 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.,

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.

Panel consists of Justices Landau, Countiss, and Guerra.

Do not publish. TEX. R. APP. P. 47.2(b).