David Mitchell Hayes v. The State of Texas--Appeal from 238th District Court of Midland County

Becker v. State )

DAVID MITCHELL HAYES,

)
No. 08-02-00526-CR)

Appellant,

)
Appeal from)

v.

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238th District Court)

THE STATE OF TEXAS,

)
of Midland County, Texas)

Appellee.

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(TC# CRB-18,467)
MEMORANDUM OPINION

Appellant is attempting to appeal from a judgment of the trial court adjudicating his guilt of indecency with a child. Pending before us is a motion to withdraw filed by appellate counsel. We grant the motion to withdraw and dismiss the appeal.

Appellant's attorney has filed a motion to withdraw because he was retained by Appellant for the limited purpose of filing a motion for new trial and did not agree to represent him on appeal beyond assisting Appellant with the timely filing of the notice of appeal. Further, the court reporter has previously notified this Court that no financial arrangements have been made for preparation of the record. Consequently, we ordered a hearing in the trial court pursuant to Tex.R.App.P. 37.3(a)(2).

In response to our order, the trial judge conducted a hearing at which Appellant and his counsel, Jeffrey T. Robnett, were present. At the hearing, Mr. Robnett presented a motion to withdraw to the trial court. The trial court correctly informed counsel that the appellate court should rule on any motion to withdraw. See Tex.R.App.P. 6.5 (appellate court may permit an attorney to withdraw from representing a party in the appellate court). Appellant stated under oath that he did not wish to pursue his appeal and he wishes for it to be dismissed. The trial court entered written findings to that effect.

Although no written motion has been filed in compliance with Rule 42.2(a) of the Texas Rules of Appellate Procedure, we believe that good cause exists to suspend the operation of Rule 42.2(a) in this case in accordance with Rule 2. See Tex.R.App.P. 2. We have not yet issued a decision. Based upon Appellant's sworn statements and the trial court's findings, the appeal is dismissed. Further, Mr. Robnett's motion to withdraw is granted with the understanding that counsel is required to forward a copy of our decision to Appellant and inform him of his right to file a motion for rehearing and petition for discretionary review, and all relevant deadlines. See Ex parte Jarrett, 891 S.W.2d 935, 939 (Tex.Crim.App. 1994).

 

May 15, 2003

ANN CRAWFORD McCLURE, Justice

 

Before Panel No. 2

Barajas, C.J., McClure, and Chew, JJ.

 

(Do Not Publish)