Opinion issued October 11, 2012




                                     In The
                               Court of Appeals
                                    For The
                         First District of Texas
                                  ____________

                               NO. 01-07-00996-CR
                                 ____________

                TERRENCE SPIDELL DURHAM, Appellant

                                       V.

                          THE STATE OF TEXAS



         On Appeal from the County Criminal Court at Law No. 13
                          Harris County, Texas
                     Trial Court Cause No. 1445021


                        MEMORANDUM OPINION

      Appellant Terrence Spidell Durham was convicted of misdemeanor assault

and was assessed punishment of confinement for one year.

      We dismiss the appeal.
      Appellant’s retained counsel filed a motion to dismiss the appeal, stating that

appellant had been convicted in federal court in another matter and that he no longer

desired to pursue this appeal. We denied the motion to dismiss because it was not

signed by appellant, as required by Rule of Appellate Procedure 42.2(a). See TEX.

R. APP. P. 42.2(a); Conners v. State, 966 S.W.2d 108, 110–11 (Tex. App.—Houston

[1st Dist.] 1998, pet. ref’d) (stating that signature of counsel on motion to dismiss,

without signature of appellant, is insufficient to support dismissal).

      We subsequently abated the appeal and remanded the case to the trial court for

a hearing to determine if appellant still wished to prosecute the appeal.

      On August 30, 2012, a supplemental record was filed containing findings and

recommendations from the trial court as follows:

             Given the long history of this case, and in the interest of
      furthering the orderly administration of justice, the trial court
      conducted a brief hearing to determine the status of counsel’s efforts to
      resolve this appeal.
             The trial court makes the following findings of fact:
             1.     Appellant is currently incarcerated in the federal
                    penitentiary in Leavenworth, Kansas.
             2.     Appellant is not indigent.
             3.     Appellant is represented by retained counsel, Mr. Andre
                    Ligon.
             4.     Since the last abatement hearing, appellate counsel has
                    spoken with [appellant] by phone on at least three
                    occasions.
             5.     According to Mr. Ligon, on each occasion, appellant has
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                      stated he wishes to dismiss the appeal, and agrees to sign
                      documents to that effect.
              6.      After each conversation, Mr. Ligon sends the documents
                      and a stamped self-addressed envelope to Appellant. In
                      each instance, Appellant fails to return the forms.
              7.      The most recent series of above-described events occurred
                      in April of this year with the same result.
              The trial court concludes that appellant has abandoned his
        appeal. The trial court recommends that the Court of Appeals dismiss
        the appeal.

        Appellant has not filed a written motion to dismiss the appeal. See TEX. R.

APP. P. 42.2(a). However, based on the trial court’s finding that appellant does not

want to continue his appeal, we conclude that good cause exists to suspend the

operation of Rule 42 in this case. See TEX. R. APP. P. 2, 42. We have not yet

issued a decision.

        Accordingly, we dismiss the appeal. Any pending motions are dismissed as

moot.

                                    PER CURIAM

Panel consists of Justices Jennings, Higley, and Sharp.

Do not publish.      TEX. R. APP. P. 47.2(b).




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