David Leon Franklin v. State

Opinion

IN THE

TENTH COURT OF APPEALS

No. 10-13-00404-CR

DAVID LEON FRANKLIN, Appellant

v.

THE STATE OF TEXAS, Appellee

From the 18th District Court Johnson County, Texas

Trial Court No. F47396

MEMORANDUM OPINION

Appellant David Leon Franklin appealed the trial court’s revocation of his community supervision. On June 12, 2014, we abated this appeal to the trial court to conduct any necessary hearings in accordance with Rule of Appellate Procedure 38.8(b)(2) and (3) because appellant’s brief had not been filed. See TEX. R. APP. P. 38.8(b)(2), (3). At the July 1, 2014 hearing, Franklin unequivocally stated to the trial court that he wanted to dismiss his appeal and that he wanted his attorney to file a motion to dismiss.

Franklin’s counsel has now filed a motion to dismiss this appeal. We have not issued a decision in this appeal. While Franklin’s counsel has signed the motion to dismiss, Franklin has not personally signed the motion, as required by Rule 42.2(a). See TEX. R. APP. P. 42.2(a). However, because Franklin unequivocally testified, with his counsel present, that he wanted his appeal dismissed, we implement Rule 2 to suspend the personal signature requirement of Rule 42.2(a). See TEX. R. APP. P. 2; Hendrix v. State, 86 S.W.3d 762, 763-64 (Tex. App.—Waco 2002, no pet.) (mem. op.).

The motion to dismiss is granted, and the appeal is dismissed.

REX D. DAVIS

Justice

Before Chief Justice Gray, Justice Davis, and Justice Scoggins Appeal dismissed Opinion delivered and filed August 28, 2014 Do not publish [CR25]

Franklin v. State Page 2