                                   NO. 07-01-0335-CR

                             IN THE COURT OF APPEALS

                      FOR THE SEVENTH DISTRICT OF TEXAS

                                      AT AMARILLO

                                        PANEL A

                                   OCTOBER 22, 2001

                          ______________________________


                            JEB PEMBERTON, APPELLANT

                                            V.

                          THE STATE OF TEXAS, APPELLEE


                        _________________________________

             FROM THE 181ST DISTRICT COURT OF POTTER COUNTY;

                NO. 42,467-B; HONORABLE JOHN B. BOARD, JUDGE

                         _______________________________

Before BOYD, C.J., and REAVIS and JOHNSON, JJ.


       Appellant Jeb Pemberton was convicted of the offense of evading arrest with a

vehicle and sentenced to confinement for two years in a state jail facility and a fine of

$5,000. He gave a pro se notice of appeal from that conviction on June 8, 2001. Appellant

then retained counsel, who filed with the trial court a motion to dismiss appellant’s pro se

notice of appeal and a motion for new trial. The motion to dismiss the appeal was granted
by the trial court, and the motion for new trial was filed and subsequently overruled by

operation of law.


       We previously abated this appeal back to the trial court because the motion to

dismiss was erroneously filed in that court and the withdrawal did not include the signature

of appellant as required by Rule of Appellate Procedure 42.2 for a voluntary dismissal in

a criminal case. Furthermore, although we had requested by letter that counsel for

appellant file a motion to dismiss with the clerk of this court, no such motion was filed. We

therefore requested the trial court to determine whether appellant wished to continue to

prosecute his appeal.


       We have since received findings of fact and conclusions of law from the trial court

and a transcript of the proceeding held in that court. The record shows that, since the date

that appellant filed his motion to dismiss his pro se notice of appeal, he was indicted on

another charge arising out of the same incident, and the State agreed to dismiss that

charge in exchange for appellant dismissing the appeal that is currently before this court.

Appellant affirmed on the record that he wished to accept the State’s offer, and it was his

intent to withdraw his notice of appeal.


       We have the authority, pursuant to Rule 2 of the Rules of Appellate Procedure, to

suspend the operation of Rule 42.2(a) for this appeal only, and find that appellant has

voluntarily dismissed his appeal by virtue of his testimony during the hearing and despite

his lack of compliance with that rule. See Conners v. State, 966 S.W.2d 108, 110-11



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(Tex.App.--Houston [1st Dist.] 1998, pet. ref’d). Therefore, because the record shows

appellant no longer wishes to pursue his appeal, it is hereby dismissed.



                                               John T. Boyd
                                                Chief Justice

Do not publish.




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