David Stuart Abbey v. The State of Texas--Appeal from 176th District Court of Harris County

Opinion issued December 1, 2005

In The

Court of Appeals

For The

First District of Texas

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NO. 01-05-00294-CR

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DAVID STUART ABBEY, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 176th District Court

Harris County, Texas

Trial Court Cause No. 1011969

MEMORANDUM OPINION

Appellant David Stuart Abbey and his counsel Dan Cogdell informed the trial court judge that appellant wanted to withdraw his notice of appeal. The clerk s record for the above referenced appeal contains a docket sheet entry that states:

Hearing held before the court where the defendant appeared with his attorney, Dan Cogdell. The Defendant indicated his desire to withdraw his appeal in this case. The court then allowed the defendant to withdraw his appeal and a transcript of this hearing is to be forwarded to the court of appeals where his appeal is pending. The court also granted Mr.Cogdell s motion to withdraw as attorney for the defendant.

The trial court conducted a hearing on April 7, 2005, and ordered the reporter s record of the hearing forwarded to this Court. The court then allowed Mr. Cogdell to withdraw from the case.

On August 16, 2005, Wong C. Lee, the Deputy Court Reporter for the 176th District Court filed the transcript for the April 7, 2005 hearing. The appellant gave testimony at the hearing that he did not desire to pursue the appeal in this case. The transcript provides:

THE COURT: This is in Cause Number 1011969, State of Texas versus David Abbey. It appears that on March 10, 2005, a notice of appeal was filed on behalf of Mr. Abbey and Mr. Cogdell , who represents Mr. Abbey, filed this motion or notice. At that time the Court set an appeal bond and it was back on the docket for further proceedings. Mr. Cogdell met Mr. Abbey. We have gone over this morning your opinions in terns of whether or not to continue pursuing your appeal or to dismiss your appeal; correct?

THE DEFENDANT: Yes , sir.

MR. COGDELL: Have we discussed that throughly enough to your satisfaction?

THE DEFENDANT: Yes.

MR. COGDELL: You have any questions?

THE DEFENDANT: No, sir.

MR. COGDELL: Or of the court or the prosecutor on your rights to appeal your case?

THE DEFENDANT: No, sir.

MR. COGDELL: Do you wish to affirmatively waive or give up your right to appeal, which is your right?

THE DEFENDANT: Yes, sir.

MR. COGDELL: Now, I talked to you about this issue when you were convicted and talked to you about it recently. Do you wish me to do anything else or do you wish to have time to confer or speak to another lawyer to advise you or counsel you on the situation?

THE DEFENDANT: No, sir.

MR. COGDELL: So you are confident that you wish to abate your appeal and begin serving your sentence is sincere and genuine?

THE DEFENDANT: Yes, sir.

Appellant has not filed a written motion to withdraw the appeal with the appellate clerk of this Court. See Tex. R. App. P. 42.2(a). However, given appellant s expressed desire to forego pursuit of his appeal, we conclude that good cause exists to suspend the operation of Rule 42.2(a) in this case in accordance with Rule 2. See Tex. R. App. P. 2. We have not yet issued a decision. Accordingly, the appeal is dismissed.

The clerk of this Court is directed to issue the mandate. Tex. R. App. P. 18.1.

PER CURIAM

Panel consists of Justices Taft, Keyes, and Hanks.

Do not publish. Tex. R. App. P. 47.2(b).