Jose Cardenas v. State

• Court: Court of Appeals of Texas
• Decided: January 24, 2019
• Docket: 13-18-00469-CR
• Status: Published

Opinion

NUMBER 13-18-00469-CR

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI - EDINBURG ____________________________________________________________

JOSE CARDENAS, Appellant,

v.

THE STATE OF TEXAS, Appellee. ____________________________________________________________

On appeal from the 214th District Court of Nueces County, Texas. ____________________________________________________________

MEMORANDUM OPINION Before Chief Justice Contreras and Justices Benavides and Longoria Memorandum Opinion by Justice Benavides

Appellant Jose Cardenas filed a notice of appeal regarding his judgment of

conviction for third degree felony assault under section 22.01(b)(2)(B) of the Texas Penal

Code. See TEX. PENAL CODE ANN. § 22.01(b)(2)(B) (West, Westlaw through 2017 1st

C.S.). We dismiss his appeal. By order previously issued on November 7, 2018, we abated and remanded this

appeal to the trial court because the reporter’s record had not been filed. See TEX. R.

APP. P. 37.3(a)(2). We requested the judge of the trial court to conduct a hearing to

determine: (1) whether appellant desires to prosecute this appeal; (2) whether appellant

is indigent; (3) whether appellant is entitled to a free appellate record and appointed

counsel due to his indigency; and (4) what steps are necessary to ensure the prompt

preparation of a complete reporter’s record. We requested the trial court to enter any

orders required to avoid further delay and to preserve the parties’ rights. We requested

that the trial court’s findings and recommendations, together with any orders it might

enter, be included in a supplemental clerk’s record to be filed with this Court.

On December 18, 2018, we received the supplemental clerk’s record containing

the requested information. On December 17, 2018, the trial court signed an order

entitled “Finding and Order on Remand.” According to this order, the trial court held a

hearing on November 30, 2018 at which appellant and his trial attorney were present.

The trial court’s finding of fact states that appellant “does not desire to prosecute this

appeal” and “personally express[ed] his desire to accept his sentence at this time.”

To effectuate a voluntary dismissal of a criminal appeal, the appellate rules require

that the appellant and his attorney sign and file a written motion to dismiss the appeal.

See id. R. 42.2(a). In this case, appellant has not filed a written motion to dismiss the

appeal. However, based upon the trial court’s findings that appellant does not want to

continue his appeal, we conclude that good cause exists to suspend the operation of Rule

42.2(a). See id. R. 2 (allowing an appellate court to suspend a rule’s operation in a

2 particular case and order a different procedure); Conners v. State, 966 S.W.2d 108, 110–

11 (Tex. App.—Houston [1st Dist.] 1998, pet. ref’d) (applying Rule 2 to suspend the

requirement for a signed motion to dismiss in a criminal case); see also Badillo v. State,

No. 13-18-00057-CR, 2018 WL 1870421, at *1 (Tex. App.—Corpus Christi Apr. 19, 2018,

no pet.) (mem. op.) (same).

Based on the foregoing, we reinstate this appeal. We suspend the requirements

of Rule 42.2(a) in this case and we dismiss the appeal.

GINA M. BENAVIDES, Justice

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

Delivered and filed the 24th day of January, 2019.