Robert Lee Gee v. The State of Texas--Appeal from 77th District Court of Limestone County

IN THE

TENTH COURT OF APPEALS

No. 10-94-263-CR

ROBERT LEE GEE,

Appellant

v.

THE STATE OF TEXAS,

Appellee

From the 77th District Court

Limestone County, Texas

Trial Court # 8200-A

MEMORANDUM OPINION

A jury found Robert Gee guilty of burglary of a vehicle and assessed punishment of eight years' imprisonment and a $5,000 fine. See Tex. Penal Code Ann. 30.04 (Vernon 1994). Although he has appealed his conviction, on January 24, 1995, he filed a motion to dismiss his appeal. In the relevant part, Rule 59 of the Texas Rules of Appellate Procedure states:

(b) Criminal Cases. The appeal may be dismissed if the appellant withdraws his notice of appeal at any time prior to the decision of the appellate court. The withdrawal shall be in writing signed by the appellant and his counsel and filed in duplicate with the clerk of the court of appeals in which the appeal is pending . . . . Notice of the dismissal shall be sent to the clerk of the trial court in which notice of appeal was filed.

Tex. R. App. P. 59(b).

Although Gee's motion does not specifically withdraw his notice of appeal, we will construe and treat the motion as such a request. We have not issued a decision in his appeal. The motion is signed by Gee and asserts that he has been fully advised by his attorney. His attorney has signed the certificate of service, but has not actually signed the motion itself. Again, construing the motion so that the relief Gee seeks can be granted, we conclude that his attorney's signature on the certificate of service is sufficient, in this case, to satisfy the requirement of the rule. Gee has filed the motion in duplicate, as required. Thus, the motion is granted.

Gee's appeal is dismissed.

PER CURIAM

Before Chief Justice Thomas,

Justice Cummings, and

Justice Vance

Appeal dismissed

Opinion delivered and filed February 1, 1995

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