Federico Rubio Paredes v. the State of Texas

• Court: Court of Appeals of Texas
• Decided: June 8, 2023
• Docket: 01-23-00284-CR
• Status: Published

Opinion

Opinion issued June 8, 2023

In The

Court of Appeals For The

First District of Texas ———————————— NO. 01-23-00284-CR ——————————— FEDERICO RUBIO PAREDES, Appellant V. THE STATE OF TEXAS, Appellee

On Appeal from the 351st District Court Harris County, Texas Trial Court Case No. 1729334

MEMORANDUM OPINION

Appellant, Federico Rubio Paredes, appealed from the trial court’s April 6,

2023 judgment of conviction. On May 23, 2023, appellant filed an “Emergency

Motion to Dismiss Appeal,” stating that he had “filed a timely motion for new trial

that was granted by the trial court on May 19, 2023.” Despite the trial court’s order granting new trial, appellant’s motion states that he “remains in custody because his

notice of appeal . . . remains in effect and he is unable to make an appeal bond.”

However, because his conviction “has already been overturned by the trial court,”

appellant “no longer wishes to pursue” his appeal, and requests that the Court

dismiss his appeal.

Appellant’s motion is signed by appellant’s counsel, but not by appellant.

Accordingly, appellant’s motion to dismiss fails to comply with the requirements of

Texas Rule of Appellate Procedure 42.2, governing voluntary dismissal in criminal

cases. See TEX. R. APP. P. 42.2(a) (“At any time before the appellate court’s

decision, the appellate court may dismiss the appeal upon the appellant’s motion.

The appellant and his or her attorney must sign the written motion to dismiss . . . .”

(emphasis added)).

We note however that the granting of a motion for new trial restores the case

to its position before the former trial. See TEX. R. APP. P. 21.9(b). Accordingly, the

trial court’s order granting a new trial has rendered the appeal moot. See TEX. R.

APP. P. 21.9(b); see also Villegas v. State, No. 01-12-00605-CR, 2012 WL 6208301,

at *1 (Tex. App.—Houston [1st Dist.] Dec. 13, 2012, no pet.) (mem. op., not

designated for publication) (dismissing appeal as moot where trial court granted new

trial although “appellant did not sign the motion to dismiss”).

2 Appellant’s motion also requests that the Court immediately issue its mandate.

An appellate clerk may issue a mandate early either on agreement of the parties, “or

for good cause on the motion of a party.” See TEX. R. APP. P. 18.1(c). We construe

this request, included in appellant’s motion to dismiss, as a motion for immediate

issuance of the mandate.

Accordingly, we dismiss the appeal as moot. See TEX. R. APP. P. 43.2(f). We

further grant appellant’s motion for immediate issuance of the mandate and direct

the Clerk of this Court to immediately issue the mandate. See TEX. R. APP. P.

18.1(c). We dismiss any other pending motions, including appellant’s Emergency

Motion to Dismiss Appeal, as moot.

PER CURIAM

Panel consists of Chief Justice Adams and Justices Guerra and Farris. Do not publish. TEX. R. APP. P. 47.2(b).