Becker v. State

COURT OF APPEALS

EIGHTH DISTRICT OF TEXAS

EL PASO, TEXAS

)

GILBERT VARGAS,

)No. 08-02-00446-CR

)

Appellant,

)Appeal from

)

v.

)County Court at Law No. 2

)

THE STATE OF TEXAS,

)of Midland County, Texas

)

Appellee.

)(TC# CR-90,340)

MEMORANDUM OPINION

Following an open plea of guilty, the trial court found Appellant guilty of driving while intoxicated, second offense, and sentenced him to a fine of $500 and confinement for ninety days, suspended for one year. Appellant filed a pro se notice of appeal but he made no arrangements to pay for the appellate record. He has since decided that he no longer wishes to prosecute his appeal. The appeal is dismissed.

The appellate record was due to be filed on February 20, 2003. Both the clerk and court reporter notified the Court that Appellant had failed to make financial arrangements to pay for the record. On March 3, 2003, we ordered the trial court to conduct a hearing to determine, among other things, whether Appellant wished to continue with his appeal. See Tex.R.App.P. 37.3(a)(2). In response to our order, the trial judge conducted a hearing attended by Appellant, pro se, and the State. Appellant stated in open court that he did not wish to prosecute his appeal because he was currently incarcerated in the Institutional Division on another case. Instead, Appellant entered into negotiations with the State whereby he agreed to dismiss his appeal in exchange for a favorable resolution of the instant case. ⁽¹⁾ Appellant informed the trial court that he did not want to pursue his appeal and he asked for it to be dismissed.

Although no written motion has been filed in compliance with Rule 42.2(a) of the Texas Rules of Appellate Procedure, we believe 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. Based upon Appellant's statements made in open court, we dismiss the appeal.

July 24, 2003 /s/ Ann Crawford McClure

ANN CRAWFORD McCLURE, Justice

Before Panel No. 2

Barajas, C.J., McClure, and Chew, JJ.

(Do Not Publish)

1. Appellant did not want to be on misdemeanor probation while serving time in TDCJ-ID because it would result in a "hold" being placed on him upon his release from TDCJ-ID. Pursuant to the agreement reached by the parties, the trial court "re-sentenced" Appellant to confinement for a term of ninety days and no fine.