
Opinion issued May 14, 2009














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

NO. 01-09-00072-CR
____________

BRIAN LEONEL AYALA, Appellant

V.

THE STATE OF TEXAS, Appellee




On Appeal from the 263rd District Court 
Harris County, Texas
Trial Court Cause No. 1156660



 
MEMORANDUM  OPINION
               Appellant’s counsel filed in the 263rd District Court of Harris County,
Texas, a motion to withdraw the appeal in trial court cause number 115660.  Attached
to the motion was a handwritten letter from appellant to his counsel that states:
Dear Mr. Phillips, I appreciate your effort in trying to
appeal my case, but I do not wish to do that.  I luckily got
the minimum so I do not want to risk getting more time, so
therefore I wish to just do my time and be home.  Thank
you.  Brian Ayala.

               The trial court scheduled a hearing on the motion.  The trial court conducted
the hearing on March 6, 2009, and the supplemental reporter’s record of that hearing
has been filed in this Court.  At the hearing, appellant stated that he wished to
withdraw this appeal:
THE COURT: Mr. Ayala, I understand from your attorney
that you had previously filed a notice of appeal on an
aggravated robbery conviction where the jury assessed...
the punishment at 5 years TDC.  You’ve appealed that case
and now it is my understanding you wish to withdraw your
formal appeal; is that correct?
 
THE DEFENDANT: yes, ma’am - - yes, sir.
 
THE COURT: And that is freely and voluntarily entered on
your part; is that correct?
 
THE DEFENDANT: Yes, I want to do myself, withdraw.
 
THE COURT: You no longer wish to appeal your
conviction?
 
THE DEFENDANT: No, sir.

               The trial court then addressed counsel for appellant Jimmy Phillips, Jr. as
follows:
THE COURT: Anything you wish to put on the record?
 
MR. PHILLIPS: No. I agree with that based upon my
conversations with him.
 
THE COURT: O’kay.  It will be so noted. Thank you so
much.
 
MR. PHILLIPS: Thank you, Your Honor.
                On March 19, 2009, appellant’s  counsel filed a written motion to withdraw
the appeal with the Clerk of this Court that did not include appellant’s signature.  See
Tex. R. App. P. 42.2(a).  However, given appellant’s expressed desire to forego
pursuit of his appeal, we conclude that good cause exists to suspend the operation of
Rule 42.2(a) in this case in accordance with Rule 2.  See Tex. R. App. P. 2.  We have
not yet issued a decision.  Accordingly, the appeal is dismissed.  
               Any pending motions are denied as moot.
               The clerk of this Court is directed to issue the mandate within 10 days.  Tex.
R. App. P. 18.1.
PER CURIAM
Panel consists of Justices Taft, Bland, and Sharp.
Do not publish.  Tex. R. App. P. 47.2(b).
