Ex parte Laureen R. Clements v. The State of Texas--Appeal from 12th District Court of Leon County

IN THE

TENTH COURT OF APPEALS

No. 10-99-219-CR

EX PARTE LAUREEN R. CLEMENTS

From the 12th District Court

Leon County, Texas

Trial Court # 8315-B

MEMORANDUM OPINION

The court convicted Laureen R. Clements in a bench trial of aggravated assault with a deadly weapon. See Tex. Pen. Code Ann. 22.02(a)(2) (Vernon 1994). The court assessed Clements s punishment at five years imprisonment and placed her on community supervision for five years. The court required her to serve six months in the county jail as a condition of her community supervision. See Tex. Code Crim. Proc. Ann. art. 42.12, 12(a) (Vernon Supp. 1999).

Before pronouncement of sentence, Clements s counsel discovered documents in a courtroom trash can which led counsel to believe that the trial court had received other evidence about the offense on trial and had engaged in other misconduct which denied Clements a fair and impartial trial. Counsel filed and presented a motion for new trial asserting these and other grounds. Presumably due to the nature of the allegations, the presiding judge for that administrative region heard the motion. After hearing the evidence, the judge granted the motion for new trial.

Clements then filed a pre-trial application for writ of habeas corpus claiming that any retrial is barred by double jeopardy as a result of judicial misconduct. Cf. Bauder v. State, 921 S.W.2d 696, 698-700 (Tex. Crim. App. 1996) (jeopardy bars retrial of defendant granted new trial because of deliberate or reckless prosecutorial misconduct). After a hearing, a third district judge denied the application. Clements appealed.

Clements has filed a notice of withdrawal of her appeal. In relevant portion, Rule 42.2 of the Texas Rules of Appellate Procedure states:

(a) 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, who must immediately send the duplicate copy to the trial court clerk.

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

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

Clements s appeal is dismissed.

PER CURIAM

Before Chief Justice Davis,

Justice Vance, and

Justice Gray

Appeal dismissed

Opinion delivered and filed September 22, 1999

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