Linda Gayle Smith v. The State of Texas--Appeal from 220th District Court of Bosque County

IN THE

TENTH COURT OF APPEALS

No. 10-97-190-CR

LINDA GAYLE SMITH,

Appellant

v.

THE STATE OF TEXAS,

Appellee

From the 220th District Court

Bosque County, Texas

Trial Court # 97-02-11759 BCCR

MEMORANDUM OPINION

On November 28, 1994, the appellant, Linda Gayle Smith, pled guilty to the felony offense of delivery of a dangerous drug, and the trial court assessed the agreed punishment of 10 years incarceration in the Institutional Division of the Texas Department of Criminal Justice, probated for 10 years. On February 24, 1997, the State filed a motion to revoke Smith s community supervision, alleging that she had violated several of the terms of her probated sentence. The trial court granted the State s motion and revoked Smith s community supervision on May 30, 1997. Smith filed a notice of appeal on June 16, 1997.

The transcript was filed on July 9, and the statement of facts was filed on July 16. Smith s brief was due on August 15. Not receiving a brief or an extension for time to file a brief, we sent a letter to Smith s attorney on August 20, informing him that he must file his brief within 10 days of the letter or the cause would be abated to the trial court for a hearing on whether Smith was receiving ineffective assistance from her counsel. Those 10 days passed and no brief or an extension to file a brief was filed. We therefore abated this cause on October 8, 1997. Furthermore, on September 17, Smith s attorney filed a motion to voluntarily dismiss Smith s appeal. Because the motion was not signed by both Smith and her attorney as is required by Rule 42.2(a), we denied the motion. A proper motion to voluntarily dismiss Smith s appeal has now been filed.

The appellate rule governing voluntary dismissals in criminal appeals states:

At any time before the appellate court s decision, the appellate court may dismiss the appeal if the appellant withdraws his or her notice of appeal. The appellant and his or her attorney must sign the written withdrawal and file it in duplicate with the appellate clerk. . . .

Tex. R. App. P. 42.2(a).

We have not issued a decision in this appeal. The motion is signed by both Smith and her attorney. Thus, the motion meets the requirements of the rules and is granted.

Smith's appeal is dismissed.

PER CURIAM

Before Chief Justice Davis,

Justice Cummings, and

Justice Vance

Dismissed on appellant's motion

Opinion delivered and filed November 5, 1997

Do not publish