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Davenport v. State

Appellant filed a motion to dismiss appeal representing that appellant wished to withdraw his notice of appeal. Although the motion was signed by counsel, it was not signed by appellant as required by Rule 42.2(a) of the Texas Rules of Appellate Procedure. Counsel's failure to procure appellant's signature results in abatement of the appeal and a remand of the cause to the trial court to resolve the issue. Amarillo Court of Appeals, No. 07-09-0255-CR, 01-08-2010

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Before QUINN, C.J., and HANCOCK and PIRTLE, JJ.

ABATEMENT AND REMAND

Following a plea of not guilty, Appellant, Timothy Davenport, was convicted for possession of a controlled substance and sentenced to fourteen months confinement. Appellant timely filed a notice of appeal. On October 19, 2009, retained counsel for Appellant filed a Motion to Dismiss Appeal representing that Appellant wished to withdraw his notice of appeal. Although the motion was signed by counsel, it was not signed by Appellant as required by Rule 42.2(a) of the Texas Rules of Appellate Procedure. Consequently, counsel was advised by the Clerk of this Court of the defect. Counsel then notified this Court by letter that he understood Appellant was in prison, “but after a thorough search,” was unable to locate him for his signature.

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