Ricardo Ontiveros Rodriguez v. State

• Court: Court of Appeals of Texas
• Decided: October 15, 2014
• Docket: 05-14-01225-CR
• Status: Published

Opinion

Order entered October 15, 2014

In The Court of Appeals Fifth District of Texas at Dallas No. 05-14-01225-CR

RICARDO ONTIVEROS RODRIGUEZ, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 401st Judicial District Court Collin County, Texas Trial Court Cause No. 401-82359-2013

ORDER The Court has before it appellant’s October 13, 2014 motion to dismiss the appeal. The

motion is signed by counsel only, and in the motion, counsel states that appellant refused to

execute the necessary documents for dismissal. Counsel further states that appellant indicated he

did not wish to pursue the appeal. Texas Rule of Appellate Procedure 42.2(a)requires that a

motion to voluntarily dismiss an appeal must be signed by both the appellant and the appellant’s

attorney. TEX. R. APP. P. 42.2(a). Therefore, the Court cannot grant the motion as it is.

Moreover, nothing in the motion reflects appellant has escaped from custody, the basis on which

an appeal may be involuntarily dismissed. See TEX. R. APP. P. 42.4. Accordingly, we DENY the

October 13, 2014 motion to dismiss the appeal.

We ORDER the trial court to make findings of fact regarding the following.  Whether appellant desires to pursue the appeal. If the trial court determines that appellant does not desire to pursue the appeal, it shall make a finding to that effect.

 If the trial court finds that appellant does desire to pursue the appeal, it shall next determine whether appellant intends to retain counsel to represent him on the appeal. If the trial court determines that appellant intends to retain counsel, the trial court shall make a finding as to the name, State Bar number, mailing address, and e-mail address for retained counsel.

 If the trial court finds that appellant does not intend to retain counsel, the trial court shall determine whether Malcolm Miranda will remain as appellant’s court- appointed counsel.

We ORDER the trial court to transmit its written findings of fact, any supporting

documentation, and any orders to this Court within THIRTY DAYS of the date of this order.

We DIRECT the Clerk to send copies of this order, by electronic transmission, to the

Honorable Mark Rusch, Presiding Judge, 401st Judicial District Court; Malcolm Miranda; and

John Rolater.

We ABATE the appeal to allow the trial court to comply with this order. The appeal

shall be reinstated thirty days from the date of this order or when the findings are received.

/s/ ADA BROWN JUSTICE