Martha Perez v. State

COURT OF APPEALS COURT OF APPEALS EIGHTH DISTRICT OF TEXAS EL PASO, TEXAS MARTHA PEREZ,                                                ) ) No. 08-04-00307-CR Appellant, ) ) Appeal from the v. ) ) County Court at Law #1 THE STATE OF TEXAS,                                     ) ) of El Paso County, Texas Appellee. ) ) (TC# 20030C14969) ) MEMORANDUM  OPINION Pending before the Court is the Appellant=s motion to dismiss this appeal, pursuant to Tex.R.App.P. 42.2(a), which allows: At any time before the appellate court=s decision, the appellate court may dismiss the appeal if the party that appealed withdraws its notice of appeal‑‑ by filing a written withdrawal in duplicate with the appellate clerk, who must immediately send the duplicate copy to the trial court clerk. An appellant must personally sign the written withdrawal. The rule was created to protect appellants and to ensure that dismissals of their appeals are by their consent. Furthermore, the rule helps ensure that such consent is informed. Conners v. State, 966 S.W.2d 108, 110 (Tex.App.‑‑Houston [1st Dist.] 1998, pet. ref'd). To this end, an appellant=s signature on the motion is imperative. Where a motion to dismiss has been signed only by the appellant=s attorney and not by the appellant, the motion is insufficient and must be denied. E.g., Page v. State, 532 S.W.2d 341, 342 n.1 (Tex.Crim.App. 1976); Gilliam v. State, 146 Tex.Crim. 620, 177 S.W.2d 782 (1944). Even if the appellant does not sign the motion, substantial compliance will suffice. For instance, the purpose of the rule will be met if the appellant signs an affidavit swearing to have read the motion and acknowledging that the facts contained in the motion are true and correct. White v. State, 993 S.W.2d 381, 382 (Tex.App.‑‑Waco 1999, no pet.). Here, the motion fails for noncompliance with the requirements of Tex.R.App.P. 42.2. The motion is signed by Appellant=s attorney but not by Appellant herself. Despite prior notice from the clerk of this Court of the noncompliance, the attorney for Appellant failed to bring the motion within substantial compliance. Accordingly, we deny the motion. The Appellant=s brief is now due February 12, 2005. January 13, 2005 DAVID WELLINGTON CHEW, Justice Before Barajas, C.J., McClure, and Chew, JJ. (Do Not Publish)