IN THE

TENTH COURT OF APPEALS

No. 10-98-067-CR

     THE STATE OF TEXAS,

                                                                              Appellant

     v.

     FREDDY VARGAS,

                                                                              Appellee

From the 12th District Court

Madison County, Texas

Trial Court # 9300

MEMORANDUM OPINION

      Freddy Vargas pled guilty without the benefit of a plea recommendation to the felony offense of possession with intent to deliver a controlled substance, cocaine, in an amount in excess of 400 grams. Thereafter, the trial court granted Vargas’ motion to set aside his guilty plea, and the State appealed. See Tex. Code Crim. Proc. Ann. art. 44.01(a)(3) (Vernon Supp. 1998). The State filed a motion to withdraw its notice of appeal with the trial court, and that court purported to grant the State’s motion by written order.

      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).

      The State did not file the motion to withdraw its notice of appeal with the clerk of this Court as required by the rule. However, the motion otherwise complies with the requirements of the rule. We have not issued a decision in this appeal. The motion is signed by the district attorney. Thus, we grant the motion.

      The State’s appeal is dismissed.

                                                                               PER CURIAM

Before Chief Justice Davis,

      Justice Cummings, and

      Justice Vance

Dismissed on the State’s motion

Opinion delivered and filed April 1, 1998

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