AUBREY QUENTIN GARRETT, Appellant v. THE STATE OF TEXAS, Appellee

DISMISSED; Opinion Filed November 8, 2010.
 
 
 
In The
Court of Appeals
Fifth District of Texas at Dallas
............................
No. 05-09-01437-CR
............................
AUBREY QUENTIN GARRETT, Appellant
V.
THE STATE OF TEXAS, Appellee
.............................................................
On Appeal from the 292nd Judicial District Court
Dallas County, Texas
Trial Court Cause No. F06-00459-V
.............................................................
OPINION
Before Justices Bridges, Francis, and Lang
Opinion By Justice Lang
        Appellant Aubrey Quentin Garrett has filed a motion to dismiss this appeal pursuant to Texas Rule of Appellate Procedure 42.2(a). See Tex. R. App. P. 42.2(a). In response to appellant's motion to dismiss, the State asserts it has “separately appealed a question of law regarding the validity of [a]ppellant's sentence” and requests this Court to address that “issue on appeal” without regard to the disposition of appellant's appeal. We grant appellant's motion to dismiss this appeal. Further, we conclude the “issue on appeal” raised by the State in this case cannot survive a voluntary dismissal pursuant to rule 42.2(a). This appeal is dismissed in its entirety.
I. BACKGROUND         
 
        Appellant was charged by affidavit and information with the offense of aggravated assault with a deadly weapon, enhanced by two prior felony convictions. On April 19, 2006, pursuant to a negotiated plea agreement, appellant waived a jury, pleaded guilty to the offense alleged, and pleaded true to both enhancement paragraphs. Additionally, on that same date, appellant signed a judicial confession in which he acknowledged committing the offense alleged and stipulated that the two enhancement paragraphs were true. The trial court accepted appellant's plea and, in accordance with the plea agreement, deferred adjudication of appellant's guilt, placed him on community supervision for seven years, and imposed a fine of $2000. The trial court's April 21, 2006 “Order of Deferred Adjudication” read in part as follows: “Findings on 1st Enhancement Paragraph: TRUE”; “Findings on 2nd Enhancement/Habitual Paragraph: TRUE.”
        On March 5, 2009, the State filed an amended motion to proceed with adjudication of guilt.   See Footnote 1  At an October 29, 2009 hearing pursuant to that motion, appellant pleaded true to the allegations in the motion and the trial court found appellant guilty. Further, the trial judge stated
In the interest of justice, and only in the interest of justice, because that sentence what [sic] I believe would be unduly harsh, I'm going to make a finding of true to one enhancement paragraph and a finding of not true to the other enhancement paragraph. That changes the penalty range from 25 to 99 or life to 5 to 99 or life.
 
Punishment was assessed by the trial court at ten years' imprisonment.
        Appellant timely filed a notice of appeal and a motion for new trial.   See Footnote 2  On April 19, 2010, appellant timely filed an appellate brief in this Court. The State filed a May 18, 2010 appellate brief in which it responded to the two issues raised by appellant and, in addition, asserted a “State's Issue on Appeal.” In that issue, the State contends “[t]he illegal sentence should be reformed to include both felony enhancement paragraphs as true, requiring a sentence compliant with 12.42(d) of the Penal Code.” The State argues “[t]he sentence given to [a]ppellant was a void and illegal sentence because prior to the revocation hearing, the two felony enhancement paragraphs were already deemed true on April 21, 2006, but the sentence was not compliant with 12.42(d).” According to the State, “[t]he trial court lacked authority to assess a punishment of less than 25 years' confinement.”
        On May 27, 2010, prior to submission of this case, appellant filed a “Motion to Dismiss the Appeal,” requesting voluntary dismissal pursuant to rule 42.2(a). That motion was signed by appellant and his attorney. The State filed a response to that motion on May 28, 2010, contending that “merely because [a]ppellant has now chosen to discontinue with his appeal does not eliminate the need for this Court to address the issue raised by the State.” The State asserts it is “entitled” to review of its issue without regard to the disposition of appellant's appeal and “respectfully continues to pursue the issue raised on its appeal and requests the [C]ourt to remand this case to the trial court for a new punishment hearing.” Appellant filed a June 3, 2010 reply brief in which he argued in relevant part (1) this Court must grant his motion to dismiss the appeal and (2) this Court lacks jurisdiction to review the State's “cross-point of error” on appeal.
II. DISMISSAL OF THIS APPEAL
 
A. Applicable Law
 
        Texas Rule of Appellate Procedure 42.2, titled “Voluntary Dismissal in Criminal Cases,” provides
        (a) At any time before the appellate court's decision, the appellate court may dismiss the appeal upon the appellant's motion. The appellant and his or her attorney must sign the written motion to dismiss and file it in duplicate with the appellate clerk, who must immediately send the duplicate copy to the trial court clerk.
        (b) After the court of appeals hands down its opinion, it may not grant an appellant's motion to dismiss the appeal unless the other parties consent. If the other parties consent and the court of appeals grants the appellant's motion to dismiss the appeal, the appellate opinion must be withdrawn and the appeal dismissed. The appellate clerk must send notice of the dismissal to the trial court clerk.
 
Tex. R. App. P. 42.2.
        Under article 44.01(c) of the Texas Code of Criminal Procedure, the State “is entitled to appeal a ruling on a question of law if the defendant is convicted in the case and appeals the judgment.” Tex. Code Crim. Proc. Ann. art. 44.01(c) (West Supp. 2010). Further, article 44.01(b) provides the State “is entitled to appeal a sentence in a case on the ground that the sentence is illegal.” Id. art. 44.01(b).
        “In a criminal case, appeal is perfected by timely filing a sufficient notice of appeal.” Tex. R. App. P. 25.2(b); see also Strong v. State, 87 S.W.3d 206, 212 (Tex. App.-Dallas 2002, pet. ref'd).
B. Application of Law to Facts
 
        The parties do not dispute that the State did not file a notice of appeal in this case. Appellant asserts this Court lacks jurisdiction to consider the State's “cross-point of error” because this Court has held “[n]o language in either article 44.01 or the appellate rules exempts the State from the notice of appeal requirement of rule [25.2(b)] when it is appealing under article 44.01(c).” Strong, 87 S.W.3d at 212. Further, appellant argues, the State cannot “piggyback” on his appeal because he “has the absolute right to have his appeal withdrawn” upon compliance with rule 42.2(a). Additionally, appellant asserts that while the rules of appellate procedure restrict voluntary dismissals in civil cases where “disposition would prevent a party from seeking relief to which it would otherwise be entitled, ” rule 42.2(a) “has no such restriction.”
        The State cites article 44.01(c) in support of its contention that it is “entitled” to review of its “issue on appeal” “without regard to the ultimate disposition of [a]ppellant's appeal.” According to the State, “[t]he validity of an appellant's sentence is a matter of law.” The State does not otherwise explain the basis for this Court's jurisdiction over its “issue on appeal” or address the appellate rules regarding voluntary dismissals.
        Although we concluded in Strong that a cross-point asserted by the State pursuant to article 44.01(c) was not properly before us because the State did not file a notice of appeal, it is not clear whether the State's “issue on appeal” in this case, in which the State complains of an “illegal sentence,” would have been improper. See Mizell v. State, 119 S.W.3d 804, 806-07 (Tex. Crim. App. 2003) (while State must file timely notice of appeal to challenge illegal sentence where defendant does not invoke jurisdiction of appellate court, State is not required to file notice of appeal before raising appellant's illegal sentence pursuant to article 44.01(b) when defendant appeals on any basis). However, even assuming without deciding that the State could “piggyback” its issue on appellant's perfection of his appeal pursuant to Mizell, we cannot agree with the State that the granting of appellant's motion to dismiss would “not eliminate the need for this Court to address the issue raised by the State.”         
        Rule of appellate procedure 42.1(a)(1), entitled “Voluntary Dismissal in Civil Cases,” provides in part, “In accordance with a motion of appellant, the court may dismiss the appeal or affirm the appealed judgment or order unless disposition would prevent a party from seeking relief to which it would otherwise be entitled.” Tex. R. App. P. 42.1(a)(1). Additionally, under rule of appellate procedure 42.1(b), “[a] severable portion of the proceeding may be disposed of under (a) if it will not prejudice the remaining parties.” See Tex. R. App. P. 42.1(b). However, by contrast, rule 42.2(a) does not make provision for survival of any issue raised by another party when an appellant moves to dismiss. See Tex. R. App. P. 42.2(a). Thus, the rules of appellate procedure “provide for options in civil cases that are not available in criminal cases.” Depew v. State, 843 S.W.2d 87, 88 (Tex. App.-Dallas 1992, no pet.) (comparing former versions of appellate rules regarding disposal of civil and criminal appeals by agreement of parties and concluding provisions of rule pertaining to civil cases were not applicable to criminal cases). Accordingly, based on the plain language of rules 42.1(a)-(b) and 42.2(a), we conclude the “issue on appeal” raised by the State in this case cannot survive a voluntary dismissal pursuant to rule 42.2(a).
        Here, the record shows appellant has met the requirements of rule 42.2(a). See Tex. R. App. P. 42.2(a). Therefore, his motion to dismiss is granted. See id.; see also Jones v. Barnes, 463 U.S. 745, 751 (1983) (“the accused has the ultimate authority to make certain fundamental decisions regarding the case, as to whether to plead guilty, waive a jury, testify in his or her own behalf, or take an appeal”); Conners v. State, 966 S.W.2d 108, 110 (Tex. App.-Houston [1st Dist.] 1998, pet. ref'd) (“The decision of whether to take an appeal from a criminal conviction is personal to the accused.”). We dismiss this appeal in its entirety.
III. CONCLUSION
 
        Because appellant has met the requirements of rule of appellate procedure 42.2(a), we grant appellant's motion to dismiss this appeal. Additionally, we conclude the “issue on appeal” raised by the State in this case cannot survive a voluntary dismissal pursuant to rule 42.2(a). This appeal
is dismissed in its entirety.
 
                                                          
                                                          DOUGLAS S. LANG
                                                          JUSTICE
 
Do Not Publish
Tex. R. App. P. 47.2
091437F.U05
 
 
Footnote 1 Additionally, the State filed motions to adjudicate on July 30, 2007, and September 6, 2007, that were subsequently withdrawn and a September 22, 2008 motion to adjudicate.
Footnote 2 The record is silent as to the disposition of appellant's motion for new trial.