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LEE RAY GARCIA, Appellant,

THE STATE OF TEXAS, Appellee.

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Appellant, Lee Ray Garcia, was convicted of possession of a controlled substance. On June 20, 2008, appellant filed a notice of appeal by and through his attorney. Counsel for appellant subsequently filed a motion to withdraw as counsel and the trial court appointed new counsel, David Fast. On January 22, 2009, this Court abated the appeal because of counsel's failure to file a brief and ordered the trial court to determine whether appellant desired to prosecute this appeal.

At the trial court hearing, counsel appeared and stated that appellant had authorized counsel to dismiss the case, but that appellant could not be located. Counsel said that he filed a motion to dismiss the appeal, but was informed by this Court that it could not be dismissed without appellant's signature. ⁽¹⁾ See Tex. R. App. P. 42.2 (a). At the hearing it was established that appellant had been released from jail, was not on parole or on probation, and that all attempts to locate the appellant had been exhausted.

Based upon the evidence at the hearing that appellant does not want to continue his appeal, we conclude that good cause exists to suspend the operation of Rule 42.2(a) in this case. See Tex. R. App. P. 2. Accordingly, we dismiss the appeal.

PER CURIAM

Do not publish.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

Memorandum Opinion delivered and filed

this 19th day of March, 2009.

1. The Court's records do not indicate that counsel for appellant filed a written motion to dismiss the appeal.