IN THE

TENTH COURT OF APPEALS

No. 10-02-004-CV

     ALAN TUCKER, ET AL.,

                                                                              Appellants

     v.

     JIM AND NELDA VAUGHN

     AND GENELL MOORE,

                                                                              Appellees

From the 220th District Court

Bosque County, Texas

Trial Court # 00-09-21600BCCV

MEMORANDUM OPINION

      Appellants filed a declaratory judgment action against Appellees seeking to enforce restrictive covenants referenced in the deeds under which all the parties claim title. A jury found that the restrictive covenants had been abandoned. The court entered judgment in accordance with the verdict and awarded Appellees Jim and Nelda Vaughn their attorney’s fees. Appellants perfected this appeal.

      Appellants filed a motion to dismiss their appeal on February 27. They state in the motion that the parties have settled their dispute and “desire that this cause be dismissed with prejudice with all costs to be taxed to the party incurring same.” Rule of Appellate Procedure 42.1(a)(2) provides:

(a) The appellate court may dispose of an appeal as follows:

(2) in accordance with a motion of appellant to dismiss the appeal or affirm the appealed judgment or order; but no other party may be prevented from seeking any relief to which it would otherwise be entitled.

Tex. R. App. P. 42.1(a)(2).

      Appellants’ motion to dismiss complies with the requirements of the appellate rules. More than ten days have passed since the filing of the motion without a response from Appellees. Accordingly, this cause is dismissed with costs to be taxed against the party incurring same.

                                                                         PER CURIAM

Before Chief Justice Davis,

      Justice Vance, and

      Justice Gray

Appeal dismissed

Opinion delivered and filed March 13, 2002

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[CV06]

0.388889in">      On September 6, 1996, Appellant waived his right to a jury and entered open pleas of guilty in each case. He signed plea papers in each case which included a waiver of jury, felony plea of guilty, and a judicial confession. Appellant also signed the court's Admonition of Statutory and Constitutional Rights and Defendant's Acknowledgment which included the punishment ranges for each offense, and an admonishment regarding possible deportation, exclusion from admission to this country and denial of naturalization.

      After Appellant was convicted and sentenced, he filed a motion for a new trial by new (his second) counsel alleging:

the attorney for defendant failed to properly present evidence relevant to the sentence and which was mitigating in nature . . . performance of trial counsel was so deficient during the sentencing hearing with regard to the presentation of mitigating evidence as to deprive defendant of effective assistance of counsel.

      On November 18, 1996, the trial court granted the motion for a new trial.

      Defendant then pled guilty in both cases. Defense counsel then stated to the court:

I guess you could adopt the same plea papers. In fact I have for the court and prosecutor a typed copy of the plea proceeding that took place on September 6, 1996, which evidence, the defendant's plea, waiver, admonishment of the court, the State's offer of evidence, the defendant's signed judicial confession, in each case, the defendant's entry of pleas of guilty and the defendant's testimony. I ask the court to judicially note the events that occurred on September 6 and make them apply in this proceeding.

      The court then stated:

that item is admitted, and all of the papers previously and re-adopted by and re-urged and the court will treat them as filed on connection -- as refiled in connection with this case. Is that agreeable with both sides?

      The prosecution and defense counsel both responded, "Yes, Your Honor.

      Appellant argues that Appellant and his new counsel needed to sign a new statement that Appellant understood the admonitions and was aware of the consequences of his plea; and that the statement signed by Appellant and his prior counsel could not suffice.

      We reject Appellant's contention. Appellant and his second attorney received the remedy they requested, that is, the opportunity to present mitigating evidence at a new punishment hearing. They did this and received a 5-year reduction in the 25-year sentence given on September 6.

      Given the fact that it was Appellant who offered to the court the record of the September 6 plea proceeding and related plea papers, Appellant should not be allowed to be rewarded with another trial when it was he who created the very situation about which he now complains.

      The record before us, for Appellant's second trial, shows Appellant was admonished in accordance with art. 26.13 and there is nothing to indicate Appellant entered his plea involuntarily or that he did not understand the written admonitions which were signed and acknowledged by him.

      Appellant's point is overruled in each case. The judgment in each case is affirmed.

                                                                               FRANK G. McDONALD

                                                                               Chief Justice (Retired)

Before Chief Justice Davis,

      Justice Vance and

      Chief Justice McDonald (Retired)

Affirmed

Opinion delivered and filed March 4, 1998

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