                        COURT OF APPEALS
                         SECOND DISTRICT OF TEXAS
                              FORT WORTH

                             NO. 02-17-00359-CR


DAVID MIDDLEMAN                                                     APPELLANT

                                       V.

THE STATE OF TEXAS                                                       STATE

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          FROM THE 431ST DISTRICT COURT OF DENTON COUNTY
                    TRIAL COURT NO. F16-2710-431

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                        MEMORANDUM OPINION1

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      After receiving Appellant’s Counsel’s “Motion to Withdraw as Counsel for

Appellant,” we abated this appeal and remanded this case to the trial court for a

hearing to determine whether Appellant wished to continue this appeal. Two

days before the hearing, Appellant’s counsel filed with this court a motion to

dismiss Appellant’s appeal, but the motion did not comply with rule 42.2(a)



      1
       See Tex. R. App. P. 47.4.
because it included limitations beside Appellant’s signature.2 See Tex. R. App.

P. 42.2(a). Two days later at the abatement hearing, the trial court noted that it

had received Appellant’s handwritten motion to withdraw his appeal.3 The trial

court confirmed that Appellant no longer wishes to pursue this appeal.

      Rule 42.2(a) of the Texas Rules of Appellate Procedure provides that an

appeal may be dismissed if an appellant files a motion to dismiss the appeal

signed by both the appellant and his attorney. See id. The purpose of that

requirement is to protect an appellant from having his appeal dismissed by

counsel without his consent and to ensure that counsel had notice of the motion

in order to advise the client on the consequences of a dismissal. Conners v.

State, 966 S.W.2d 108, 110 (Tex. App.—Houston [1st Dist.] 1998, pet. ref’d); see

Jones v. State, No. 07-15-00371-CR, 2016 WL 902960, at *1 (Tex. App.—

Amarillo Mar. 7, 2016, no pet.) (mem. op., not designated for publication).

Moreover, the decision of whether to take an appeal from a criminal conviction is

personal to the accused.    See Conners, 966 S.W.2d at 110 (citing Jones v.

Barnes, 463 U.S. 745, 751, 103 S. Ct. 3308, 3312 (1983)).

      Based on the record before us, and no decision of this court having been

delivered, we dismiss this appeal at Appellant’s request and dismiss counsel’s

      2
        After Appellant’s signature, the following appears: “without recourse all
rights reserved.”
      3
       Appellant’s handwritten motion to withdraw his appeal appears in the
supplemental clerk’s record that was filed in this court after the abatement
hearing.


                                        2
motion to withdraw as moot.    See Tex. R. App. P. 43.2(f); Jones, 2016 WL

902960, at *1; see also Terry v. State, No. 03-14-00555-CR, 2016 WL 4506154,

at *1 (Tex. App.—Austin Aug. 25, 2016, no pet.) (mem. op., not designated for

publication) (dismissing appeal at appellant’s request and dismissing counsel’s

motion to withdraw as moot).



                                                /s/ Sue Walker
                                                SUE WALKER
                                                JUSTICE

PANEL: WALKER, MEIER, and GABRIEL, JJ.

DO NOT PUBLISH
Tex. R. App. P. 47.2(b)

DELIVERED: June 21, 2018




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