Garcia, Susana Sanchez v. State

• Court: Court of Appeals of Texas
• Decided: October 7, 2004
• Docket: 14-04-00933-CR
• Status: Published

Opinion

Dismissed and Memorandum Opinion filed October 7, 2004

Dismissed and Memorandum Opinion filed October 7, 2004.

In The

Fourteenth Court of Appeals

____________

NO. 14-04-00933-CR

SUSANA SANCHEZ GARCIA, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the County Criminal Court at Law No. 1

Harris County, Texas

Trial Court Cause No. 1229397

M E M O R A N D U M   O P I N I O N

Appellant entered a plea of nolo contendere to a misdemeanor offense of driving while intoxicated.  Pursuant to a plea bargain agreement with the State, the trial court sentenced appellant on July 1, 2004 to confinement in the Harris County Jail for three days and assessed a $750 fine.  Appellant filed a timely, written notice of appeal.  The trial court filed of certification of appellant=s right to appeal in which the court stated that appellant had the right to appeal matters raised by written pre-trial motion. 

A written request to withdraw the notice of appeal, personally signed and sworn by appellant, was filed with the trial court on July 9, 2004.  See Tex. R. App. P. 42.2(a) (providing that written withdrawal of notice of appeal must be filed with appellate clerk). The trial court signed an order granting appellant=s motion to withdraw her notice of appeal and dismiss the appeal on July 9, 2004.  The appeal was assigned to this court and the clerk=s record was filed on September 17, 2004.

It is within the jurisdiction of the court of appeals, and not the trial court, to rule on matters relating to jurisdiction over appeals.  See Campos v. State, 818 S.W.2d 872, 875 (Tex. App.CHouston [14th Dist.] 1991, pet. ref=d).  Thus, the trial court does not have jurisdiction to dismiss the appeal. 

Appellant=s motion to withdraw her notice of appeal and dismiss the appeal has now been filed with the clerk of this court as part of the clerk=s record.  We suspend the operation of rule 42.2 and construe the motion as being properly filed.  See Tex. R. App. P. 2 (permitting suspension of rule=s operation to expedite decision or for other good cause).  Because this court has not delivered an opinion, we grant appellant=s request.

Accordingly, we order the appeal dismissed.  We direct the clerk of the court to issue the mandate of the court immediately.

PER CURIAM

Judgment rendered and Memorandum Opinion filed October 7, 2004.

Panel consists of Chief Justice Hedges and Justices Fowler and Seymore.

Do Not Publish C Tex. R. App. P. 47.2(b).