Diana E. Rodriguez v. State

Opinion

Dismissed and Memorandum Opinion filed October 10, 2013.

In The

Fourteenth Court of Appeals

NO. 14-13-00148-CR

DIANA E. RODRIGUEZ, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 400th District Court Fort Bend County, Texas

Trial Court Cause No. 05-DCR-043094

MEMORANDUM OPINION Appellant entered a plea of guilty to theft, a state jail felony offense. On March 24, 2006, pursuant to an agreement with the State, the trial court deferred a finding of guilt and placed appellant on community supervision for four years. On July 26, 2011, appellant filed an application for a writ of habeas corpus, seeking to set aside the plea. See Tex. Code Crim. Proc. art. 11.072. On February 4, 2013, the trial court signed an order denying the requested relief, and appellant filed a timely notice of appeal.

No brief was filed in this appeal. On September 9, 2013, this court ordered a hearing to determine why appellant’s counsel had not filed a brief. On September 19, 2013, the trial court conducted the hearing, and a record of the hearing was filed in this court on September 26, 2013. At the hearing, retained counsel for appellant informed the court that appellant no longer wishes to appeal. No motion to dismiss the appeal has been filed. See Tex. R. App. P. 42.2. We may consider the appeal based on the record from the hearing in the trial court, however. See Tex. R. App. P. 38.8(b). Based on the record, we will treat counsel’s statements to the court at the hearing as a request to dismiss the appeal without a written motion. See Tex. R. App. P. 2 (permitting the court to suspend a rule’s operation to expedite a decision or for other good cause); Conners v. State, 966 S.W.2d 108, 110–11 (Tex. App.—Houston [1st Dist.] 1998, pet. ref’d) (applying Rule 2 to suspend Rule 42.2’s requirement for a signed motion). We grant the request for dismissal.

Accordingly, we order the appeal dismissed.

PER CURIAM

Panel consists of Chief Justice Frost and Justices Boyce, and Jamison. Do Not Publish — Tex. R. App. P. 47.2(b).