Mark V. Bovee v. The State of Texas--Appeal from 52nd District Court of Coryell County

IN THE

TENTH COURT OF APPEALS

No. 10-96-119-CR

MARK V. BOVEE,

Appellant

v.

THE STATE OF TEXAS,

Appellee

From the 52nd District Court

Coryell County, Texas

Trial Court # 11,614

MEMORANDUM OPINION

On June 4, 1996, the trial court found that Mark Bovee had violated three of the conditions of his community supervision and sentenced him to ten years' incarceration in the Texas Department of Criminal Justice-Institutional Division. Bovee filed a notice of appeal in the district court two days later.

On November 1, 1996, Bovee filed a motion to dismiss, but because the motion was signed only by Bovee's attorney and not Bovee, himself, we denied the motion on November 6. See Tex. R. App. P. 59(b). After we denied the motion to dismiss, Bovee took no further action in the case. When Bovee failed to file the statement of facts on time, we abated the cause to the trial court for a determination on whether Bovee was receiving effective assistance of counsel and whether he wished to continue the prosecution of his appeal. The abatement hearing was held on January 3, 1997. A statement of facts from the abatement hearing and the trial court's findings of fact and conclusions of law were filed in this court on January 7.

In its findings of fact and conclusions of law, the trial court found that Bovee wished to dismiss his appeal. On January 6, Bovee filed a motion to dismiss his appeal, and it was signed by both Bovee and his attorney.

In relevant part, Texas Rule of Appellate Procedure 59 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[.]

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

We have not issued a decision in this appeal. The motion to dismiss is signed personally by Bovee, as required by the rule, and signed and sworn to by his attorney. Thus, the motion is granted.

The cause is reinstated, and Bovee's appeal is dismissed.

PER CURIAM

Before Chief Justice Davis,

Justice Cummings, and

Justice Vance

Appeal dismissed on appellant's motion

Opinion delivered and filed January 15, 1997

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