Miguel Soto v. The State of Texas--Appeal from 210th District Court of El Paso County

COURT OF APPEALS

EIGHTH DISTRICT OF TEXAS

EL PASO, TEXAS

MIGUEL SOTO,

Appellant,

v.

THE STATE OF TEXAS,

Appellee.

Appeal from the

210th District Court

of El Paso County, Texas

(TC# 20020D05349)

MEMORANDUM OPINION

Pending before the Court is an attempted appeal in the prosecution of Miguel Soto. The notice of appeal was filed by Judge Gonzalo Garcia on an issue of recusal, and is the subject of this motion to withdraw the notice of appeal pursuant to Rule 42.2(a):

(a) At any time before the appellate court's decision, the appellate court may dismiss the appeal if the party that appealed withdraws its notice of appeal-by filing a written withdrawal in duplicate with the appellate clerk, who must immediately send the duplicate copy to the trial court clerk. An appellant must personally sign the written withdrawal.

Tex. R. App. P. 42.2(a). Counsel for Judge Garcia has filed and signed the motion to withdraw the notice of appeal. Judge Garcia has not signed the withdrawal; however, the requirement of his signature is suspended, pursuant to Rule 2, since he is not a defendant and does not require the procedural protections for which the signature of an appellant in most criminal cases is required. Tex. R. App. P. 2. (1) The requirements of Rule 42.2(a) have been met. The Court has considered this cause on appellant's motion and concludes the motion should be granted. We therefore grant the motion and dismiss the appeal.

SUSAN LARSEN, Justice

June 26, 2003

Before Panel No. 1

Larsen, McClure, and Chew, JJ.

(Do Not Publish)

1. Rule 2 states that "On a party's motion or on its own initiative an appellate court may-to expedite a decision or for other good cause-suspend a rule's operation in a particular case and order a different procedure; but a court must not construe this rule to suspend any provision in the Code of Criminal Procedure or to alter the time for perfecting an appeal in a civil case." Tex. R. App. P. 2.