Oscar Balderas v. The State of Texas--Appeal from 64th District Court of Hale County
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NO. 07-03-0013-CR
IN THE COURT OF APPEALS
FOR THE SEVENTH DISTRICT OF TEXAS
AT AMARILLO
PANEL E
JULY 1, 2003
______________________________
OSCAR BALDERAS,
Appellant
v.
THE STATE OF TEXAS,
Appellee
_________________________________
FROM THE 64TH DISTRICT COURT OF HALE COUNTY;
NO. A13518-9909; HON. JACK R. MILLER, PRESIDING
_______________________________
Before QUINN and REAVIS, JJ., and BOYD, S.J.1
Oscar Balderas (appellant) filed a hand written document which we construed to be
a notice of appeal from his confinement in a restitution center as a condition of his
probation. The clerk's record was filed on January 30, 2003. The reporter's record was
filed on March 7, 2003. Thus, appellant's brief was due on April 7, 2003. However, one
was not filed on that date. By letter dated April 16, 2003, we notified appellant of the
expired deadline and directed him to respond to our notification of same by April 28, 2003,
1
John T. Boyd, Chief Justice (Ret.), Seventh Court of Appeals, sitting by assignment. Tex. Gov’t
Code Ann. §75.002(a)(1) (Vernon Supp. 2003).
or the appeal would be abated to the trial court pursuant to TEX . R. APP . P. 38.8. April 28,
2003, passed without appellant submitting any response to our notice.
Consequently, we abated this appeal and remanded the cause to the 64th District
Court of Hale County (trial court) and directed that it conduct a hearing to assess, among
other things, whether appellant desired to prosecute the appeal. At that hearing,
appellant informed the trial court that he no longer did.
Furthermore, appellant's
representations were contained in a supplemental clerk's record which was filed on June
24, 2003.
Although we have no motion to dismiss before us as required by Texas Rule of
Appellate Procedure 42.2(a), Rule 2 of the same rules permits us to suspend the operation
of an existing rule. TEX . R. APP . P. 2; see Rodriguez v. State, 970 S.W.2d 133, 135 (Tex.
App.--Amarillo 1998, pet. ref'd). Therefore, pursuant to Rule 2, and because appellant has
clearly revealed his desire to forego appeal, we suspend Rule 42.2(a) and dismiss the
appeal based upon appellant's representation to the trial court.
Having so dismissed the appeal, no motion for rehearing will be entertained, and
our mandate will issue forthwith.2
Brian Quinn
Justice
Do not publish.
2
On June 2, 2003, the State filed a motion to dismiss appellant’s appeal based on missed deadlines
and the lack of this court’s jurisdiction over the appeal. Based on the disposition of the appeal, the State’s
motion is now moot.
2
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