Theodore Jung Kim v. the State of Texas

Opinion

Fourth Court of Appeals

San Antonio, Texas

OPINION

No. 04-26-00192-CR

Theodore Jung KIM,

Appellant

v.

The STATE of Texas,

Appellee

From the 226th Judicial District Court, Bexar County, Texas Trial Court No. 2025-CR-006991 Honorable Benjamin Robertson, Judge Presiding

PER CURIAM

Sitting: Rebeca C. Martinez, Chief Justice Irene Rios, Justice

Velia J. Meza, Justice

Delivered and Filed: August 26, 2026 APPEAL DISMISSED On June 24, 2026, we abated the deadline for appellant’s brief and ordered the trial court to conduct a hearing to determine whether appellant desired to prosecute this appeal, whether he was indigent, and whether his appointed counsel had abandoned the appeal. See TEX. R. APP. P. 38.8(b)(2). A supplemental clerk’s record filed on July 13, 2026, containing the trial court’s findings that appellant desires to prosecute this appeal, that his appointed counsel had died, and that appellant is not indigent.

04-26-00192-CR

Because appellant was not indigent but had not retained counsel, we ordered the trial court to conduct a second hearing to determine whether appellant still desired to prosecute this appeal and whether he wished to waive his right to counsel and proceed pro se. See id. R. 38.8(b)(2)–(4). The trial court held the hearing on July 30, 2026, and appellant appeared by videoconference. The trial court’s findings, filed in this court the same day, state that when the court asked appellant whether he wished to continue with his appeal, appellant responded that he did not. The trial court recommends that we dismiss this appeal.

Voluntary dismissal of a criminal appeal ordinarily follows a motion:

At any time before the appellate court’s decision, the appellate court may dismiss the appeal upon the appellant’s motion. The appellant and his or her attorney must sign the written motion to dismiss and file it in duplicate with the appellate clerk, who must immediately send the duplicate copy to the trial court clerk.

TEX. R. APP. P. 42.2(a). No such motion has been filed in this court. But where the record shows that the appellant knowingly and actively desires dismissal, and that he has made that intention known to the trial court and to this court, courts have dismissed the appeal without a written motion signed by the appellant and his attorney. See Turullos-Gonzalez v. State, Nos. 03-22-00684-CR & 03-22-00685-CR, 2025 WL 554038, at *2 (Tex. App.—Austin Feb. 20, 2025, no pet.) (mem. op., not designated for publication); Murillo v. State, No. 04-24-00362-CR, 2025 WL 702844, at *1 (Tex. App.—San Antonio Mar. 5, 2025, no pet.) (mem. op., not designated for publication) (per curiam); Hendrix v. State, 86 S.W.3d 762, 763 (Tex. App.—Waco 2002, no pet.) (per curiam); Conners v. State, 966 S.W.2d 108, 110–11 (Tex. App.—Houston [1st Dist.] 1998, pet. ref’d). On a party’s motion or on our own initiative, we may suspend a rule’s operation in a particular case to expedite a decision or for other good cause, so long as we do not suspend a provision of the Code of Criminal Procedure or alter the time for perfecting an appeal in a civil case. See TEX. R. APP. P. 2.

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04-26-00192-CR

We have not issued a decision in this appeal, so voluntary dismissal remains available under Rule 42.2(a). Based on the trial court’s findings, appellant has plainly stated that he does not wish to pursue this appeal. To expedite a decision resolving it, we suspend the requirement of a rule-compliant motion to dismiss. See id. R. 2, 42.2(a). We dismiss this appeal in accordance with appellant’s stated preference, expressed in open court and found by the trial court, not to prosecute it. See id. R. 43.2(f).

PER CURIAM

PUBLISH