Opinion issued December 9, 2004

In The

Court of Appeals

For The

First District of Texas

____________

NO. 01-04-01075-CR

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JOHNNY LEE, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 23rd District Court

Brazoria County, Texas

Trial Court Cause No. 45,994

MEMORANDUM OPINION

                Appellant, Johnny Lee, was convicted of the felony offense of driving while intoxicated in cause number 45,994 and sentenced to three years’ confinement on September 13, 2004. A motion for new trial and a notice of appeal were timely filed on September 22, 2004. The Brazoria County District Clerk assigned the appeal to this Court on October 13, 2004.

               Appellant’s counsel, John J. Davis, filed a motion to withdraw notice of appeal and request to dismiss appeal in this Court on November 18, 2004. Counsel attached to his motion certified copies of pertinent documents filed in the trial court after the appeal was assigned. They reflect that the trial court granted the motion for new trial on October 21, 2004; that the State then re-filed the offense as misdemeanor cause number 137895; and that on November 16, 2004, the State filed a motion to dismiss cause number 45,994, which the trial court granted. Counsel informed this Court in his motion that appellant pleaded guilty to the misdemeanor information in cause number 137895 on November 16, 2004.

               We agree with counsel that the appeal in cause number 45,994 has been rendered moot. See State v. Poe, 900 S.W.2d 442, 445 (Tex. App.—Amarillo 1995, no pet.); Ex parte Sutherland, 451 S.W.2d 913, 913-14 (Tex. Crim. App. 1970).

               We therefore dismiss the appeal as moot.

PER CURIAM

Panel consists of Justices Taft, Jennings, and Bland.

Do not publish.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