Rafael Antonio Rosado v. the State of Texas

• Court: Court of Appeals of Texas
• Decided: February 22, 2024
• Docket: 03-24-00052-CR
• Status: Published

Opinion

TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN

NO. 03-24-00052-CR

Rafael Antonio Rosado, Appellant

v.

The State of Texas, Appellee

FROM THE 368TH DISTRICT COURT OF WILLIAMSON COUNTY NO. 22-1397-K368, THE HONORABLE SARAH SOELDNER BRUCHMILLER, JUDGE PRESIDING

MEMORANDUM OPINION

Appellant Rafael Antonio Rosado has filed a “motion to abate and dismiss the

appeal,” which we construe as a motion to dismiss his appeal.1 We grant the motion and dismiss

the appeal. See Tex. R. App. P. 42.2(a).

__________________________________________ Gisela D. Triana, Justice

1 We construe this as a motion to dismiss because in the motion, counsel makes no argument for abatement. Instead, counsel argues that dismissal would be appropriate because “appellant has indicated that he no longer wishes to continue with the appeal.” Moreover, although appellant has signed a statement attached to the motion requesting that his “appeal be abated,” he states that he understands that his “existing sentence will stand, and that the appeal will not go forward.” Those are the effects of a dismissal. Thus, we conclude that in substance, appellant is requesting dismissal of his appeal. See, e.g., Skinner v. State, 484 S.W.3d 434, 437-38 (Tex. Crim. App. 2016) (explaining that “when construing an order or motion,” courts must “consider the substance of the filing and not just the label attached to it”); see also Lujan v. State, Nos. 01-22-00771-CR & 01-22-00772-CR, 2022 WL 17684052, at *1 (Tex. App.— Houston [1st Dist.] Dec. 15, 2022, no pet.) (per curiam) (mem. op., not designated for publication) (construing similar motion to “abate and dismiss” appeal as motion to dismiss). Before Justices Baker, Triana, and Kelly

Dismissed on Appellant’s Motion

Filed: February 22, 2024

Do Not Publish