Randall Lee Smith v. The State of Texas--Appeal from 272nd District Court of Brazos County

IN THE

TENTH COURT OF APPEALS

No. 10-95-062-CR

RANDALL LEE SMITH,

Appellant

v.

THE STATE OF TEXAS,

Appellee

From the 272nd District Court

Brazos County, Texas

Trial Court # 23,235-272

MEMORANDUM OPINION

A jury found Randall Smith guilty of aggravated sexual assault and indecency with a child and assessed punishment of twenty-five years' incarceration and a $5,000 fine for the first offense and twenty years' incarceration and a $5,000 fine for the second offense. See Tex. Penal Code Ann. 22.021, 21.11 (Vernon 1994). Although Smith appealed from his conviction, on July 17, 1995, he filed a motion to dismiss his appeal.

In the relevant portion, Rule 59 of the Texas Rules of Appellate Procedure 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 . . . . Notice of the dismissal shall be sent to the clerk of the trial court in which notice of appeal was filed.

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

Smith has not signed the motion as required by the plain terms of the rule. He has, however, attached to the motion, as an exhibit, a copy of a motion to dismiss his appeal filed in the trial court signed by both Smith and his counsel. Although not in compliance with the Rules of Appellate Procedure, we accept this exhibit as sufficient for the requirements of the rule. See id. We have not issued a decision in this appeal. Thus, his motion is granted.

Smith's appeal is dismissed.

PER CURIAM

Before Chief Justice Thomas,

Justice Cummings, and

Justice Vance

Dismissed on appellant's motion

Opinion delivered and filed July 19, 1995

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