






Mike Arthur Hartsell v. State
















IN THE
TENTH COURT OF APPEALS
 

No. 10-03-00255-CR

     MIKE ARTHUR HARTSELL,
                                                                              Appellant
     v.

     THE STATE OF TEXAS,
                                                                              Appellee
 

From the County Court at Law No. 1
Johnson County, Texas
Trial Court # M200202193
                                                                                                                

DISSENTING OPINION
                                                                                                                

      The Court dismisses this appeal under the very circumstances the rule was designed to
prevent dismissal.  The rule requires the personal signature of the defendant on the notice of
withdrawal of the notice of appeal before we can “voluntarily” dismiss a criminal defendant’s
appeal.  The applicable rule provides as follows:
(a) 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.

Tex. R. App. P. 42.2(a).
      And the key word here is “personally.”  
      The former rule provided as follows:
(a) At any time before the appellate court's decision, the appellate court may dismiss
the appeal if the appellant withdraws his or her notice of appeal.  The appellant and
his or her attorney must sign the written withdrawal and file it in duplicate with the
appellate clerk, who must immediately send the duplicate copy to the trial court clerk. 

Tex. R. App. P. 42.2, 60 Tex. B.J. 878 (Tex. Crim. App. 1997, amended 2000).  In 2000, the
rule was amended, deleting the requirement that the attorney sign the withdrawal and adding
the word, “personally,” to emphasize that the defendant must participate in the withdrawal of
the appeal.  Tex. R. App. P. 42.2, Comment to 2000 change.
      The purpose of the rule seems obvious.  We want to be certain, before we affect the rights
of the defendant by dismissing the appeal, that in fact, that is what the defendant, not his
lawyer, wants.  The purpose of the revision of the rule seems equally obvious—to not rely on
the representations of counsel.
      I have been unable to find any voluntary dismissal of a criminal appeal by this Court in
which the withdrawal of the notice of appeal was done as contemplated by the rule.  We have,
however, granted many voluntary dismissals of criminal cases because the record contained
some affirmative indication made personally by the defendant that he wanted the appeal
dismissed.  Support for our previous dismissals-on-request can be grouped into three
categories.  The three categories are as follows:
      1) A withdrawal of the notice of appeal, that is signed by the defendant and the attorney of
record, is attached to a motion to dismiss the appeal signed only by the attorney of record.  See
McClain v. State, 17 S.W.3d 310, 311 (Tex. App.—Waco 2000, no pet.).  This is the closest
to strict compliance with the rule that I have observed.  The rule does not require a motion to
dismiss, only the filing of the notice-of-withdrawal, in duplicate, personally signed by the
defendant.  But I will hasten to add that a separate motion is an effective, but unnecessary,
means of drawing the Court’s attention to the fact that the notice of appeal has been
withdrawn.
      2) A motion to dismiss that is signed by the defendant and the defendant’s attorney of
record.  See, e.g. Lopez v. State, No. 10-03-00300-CR, 2004 Tex. App. LEXIS 5665 (Tex.
App.—Waco June 23, 2004, no pet. h.)(not designated for publication); Gamboa v. State, No.
10-03-00374-CR, 2004 Tex. App. LEXIS 1921(Tex. App.—Waco Feb. 25, 2004, no pet.)(not
designated for publication).  This is by far the most common form of request to voluntarily
dismiss criminal cases.
      3) A reporter’s record with a statement on the record made by the defendant, with defense
counsel present, that it is the defendant’s desire to dismiss the appeal.  See Hendrix v. State, 86
S.W.3d 762, 763-64 (Tex. App.—Waco 2001, no pet.); see also Huzarevich v. State, 2003
Tex. App. LEXIS 10657 (Tex. App.—Waco Dec. 17, 2003, no pet.)(not designated for
publication).
      Each of these alternate procedures that we have accepted accomplishes the same
procedural purpose that the rule is specifically designed to safeguard.  It is designed to prevent
the dismissal of a criminal appeal without the consent of the defendant.
      Unfortunately, we recently allowed an alternate procedure which did not comply with the
procedural purpose of the rule.  In an unpublished opinion, this Court allowed the dismissal of
an appeal based on an attorney’s representation by affidavit that the defendant agreed to
dismiss the appeal.  Smith v. State, No. 10-03-00194-CR, 2004 Tex. App. LEXIS 1918, (Tex.
App.—Waco February 25, 2004, no pet.)(per curiam)(not designated for publication).  We
were wrong in dismissing the appeal based on an affidavit of the attorney rather than some
kind of personal affirmation by the defendant.  We are wrong again.
      No other alternate procedure has frustrated or ignored the purpose of the rule, that is, until
today.  Today, the Court publicly has accepted a new procedure that expressly rejects the
procedural safeguard.  Indeed, based on this record, this ruling not only rejects the safeguard,
it tramples upon it.
      A review of the record in this case indicates that there is significant tension between the
defendant and his attorney of record.  In response to correspondence from this Court, counsel
writes...
“I spoke with Mike Hartsell on Saturday, April 3, 2004, about signing the Motion to
Dismiss Appeal, and he stated he did not understand why he needed to sign the
motion.  I attempted to explain to him that his signature was required under the rules
and that he needed to come to my office to sign the motion.  He stated he was not
interested in signing the motion or coming to my office.  I told him that I would drive
to his house to obtain his signature and he stated he would not allow me in his house
and that I should not come to his house to get his signature.”

This type of hostility between attorney and client indicates to me that there may be good cause
for someone to inquire into the reason for the hostility.  An inquiry that may reveal a defendant
who does not, in fact, want to dismiss the appeal, but who just does not want that attorney
pursuing it and has no idea what to do other than refuse to cooperate.
      And one of the most disturbing aspects of this dismissal is that the letter to us, relied upon
by the majority, does not indicate that it was provided to the defendant.  Without any
expression of agreement to the dismissal, we are doing exactly what is contrary to the purpose
of the rule.
      Further, I find it appalling that the majority, so free with taxpayer’s money in other
circumstances, uses that as an excuse not to follow the rules in this instance.  See Martinez v.
State, No. 10-03-00128-CR, 2004 Tex. App. LEXIS 4458 (Tex. App.—Waco May 12, 2004,
order)(Gray, C.J., concurring);  Davidoff v. GX Tech. Corp., No. 10-03-147-CV, 2004 Tex.
App. LEXIS 3246, *3-4 (Tex. App.—Waco, April 7, 2004, order)(Gray, C.J., dissenting);
Martinez v. State, No. 10-03-00128-CR, 2004 Tex. App. LEXIS 2687, *3-5 (Tex.
App.—Waco Mar. 24, 2004, order) withdrawn, April 22, 2004 (Gray, C.J., dissenting);
Harrison v. TDCJ-ID, No. 10-02-00247-CV, 2004 Tex. App. LEXIS 2719, *22-25 (Tex.
App.—Waco Mar. 24, 2004, order)(Gray, C.J., dissenting); Guerrero v. State, 64 S.W.3d
436, 444 (Tex. App.—Waco 2001, order)(Gray, J., dissenting).  At the very least we should
require proof of notice to the defendant like the majority is so quick to require in Anders
appeals.  Martinez v. State, No. 10-03-00128-CR, 2004 Tex. App. LEXIS 2687, *1-3 (Tex.
App.—Waco Mar. 24, 2004, order) withdrawn, April 22, 2004; Holt v. State, 64 S.W.3d 434
(Tex. App.—Waco 2001, order); Page v. State, 63 S.W.3d 820 (Tex. App.—Waco 2001,
order).
      I find it terribly ironic that when we have discretion to modify our procedures that could
result in a substantial savings of taxpayer provided resources, the majority rejects the
opportunity.  But when the rule clearly specifies what is required, saving judicial resources
becomes the basis for violation of the rule.  Other than that observation, I cannot tell you how
to determine when we will needlessly require something additional versus when we will not
require compliance with the rules.
      And if you really want to get down to it, the cost is very nominal because all we need is a
single page from the reporter’s record, if it exists.  The Clerk could request it, and we could
all be reassured that dismissal is what the defendant really wants.  That page would be the one
on which it would reflect that the defendant “declared in open court that he no longer wished
to pursue his appeal and stated that he accepted the trial court’s decision of finding him guilty
and agreed to the punishment assessed by the Court.”  Motion to Dismiss Appeal, p. 1.  His
lawyer asserts in the motion to dismiss that this is what happened.  It would also provide
additional support for our action to obtain the portion of the reporter’s record of the same
hearing that reflects that “After being questioned by the judge, the Court concluded that
MICHAEL ARTHUR HARTSELL did in fact voluntarily and with an understanding of the
consequences, waived his right to appeal.”  Id.
      Because the procedure utilized by the majority to dismiss this appeal is a flagrant violation
of the rules of appellate procedure, I respectfully dissent.
 
                                                                   TOM GRAY
                                                                   Chief Justice

Dissenting opinion delivered and filed June 30, 2004
Publish  
