Mike Arthur Hartsell v. State

143 S.W.3d 233, 2004 Tex. App. LEXIS 5953, 2004 WL 1474664

• Court: Court of Appeals of Texas
• Decided: June 30, 2004
• Docket: 10-03-00255-CR
• Status: Published

Opinions

MEMORANDUM OPINION

PER CURIAM.

Appellant’s counsel filed a motion to dismiss this appeal on November 20, 2003. We denied the motion on December 10 because it was not signed by Appellant. See Tex.R.App. P. 42.2(a); McClain v. State, 17 S.W.3d 810, 311 (Tex.App.-Waco 2000, no pet.) (per curiam).

Counsel stated in the motion that Appellant informed the trial court in a post-conviction indigence hearing that he no longer desired to pursue the appeal. In response to our December 10 ruling, Appellant’s counsel has attempted to obtain Appellant’s signature for the motion. Counsel states in an April 8 letter that he has explained to Appellant that the signature is required by the rules, yet Appellant has refused to cooperate. Appellant has refused to permit counsel to come to his house for the signature and has informed counsel that he will not come to counsel’s office to sign a dismissal motion.

In view of Appellant’s lack of cooperation, we will suspend the requirement that Appellant personally sign the motion. Cf. Hendrix v. State, 86 S.W.3d 762, 763-64 (Tex.App.-Waco 2002, no pet.) (mem. op.) (applying Rule 2 to suspend requirement that counsel file written withdrawal of appeal after appellant stated on record in trial court that he desired “to drop the appeal”). Otherwise, we would be required to abate this cause to the trial court to enforce this particular requirement of Rule 42.2(a) or require preparation and filing of the reporter’s record to confirm Appellant’s desire to dismiss the appeal. To do either would be an unnecessary expenditure of limited judicial resources.

Counsel states that his client is being uncooperative in complying with Rule 42.2(a). We trust that counsel is fulfilling his duty of candor as an officer of the court. See Thompson v. City of Corsicana Hous. Auth., 57 S.W.3d 547, 558 (Tex.App.-Waco 2001, no pet.) (citing Tex. Disciplinary R. Prof’l Conduct 3.03, reprinted in Tex. Gov’t Code Ann., tit. 2, subtit. G app. A (Vernon 1998)). Under these circumstances, we will not require Appellant’s court-appointed trial counsel (or Johnson County) to undergo the expense of having the reporter’s record prepared and filed to validate the truth of the allegations in his dismissal motion (ie., that Appellant told the trial court he no longer wished to pursue this appeal). See Tex. R.App. P. 10.2(c) (motion must be verified or supported by affidavit if it depends on facts “not within the personal knowledge of the attorney signing the motion.”). Nor will we abate this matter to the trial court for further proceedings.

On reconsideration, counsel’s motion to dismiss is granted. The appeal is dismissed.

Chief Justice GRAY dissenting.