David Anthony Wagner v. State ( 2018 )

Opinion issued March 15, 2018
In The
Court of Appeals
For The
First District of Texas
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NO. 01-17-00752-CR
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DAVID ANTHONY WAGNER, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from 119th District Court
Tom Green County, Texas
Trial Court Cause No. B-16-0323-SA
MEMORANDUM OPINION
Appellant, David Anthony Wagner, timely filed a notice of appeal from the
trial court’s judgment adjudicating guilt, signed on August 17, 2017.1 See TEX. R.
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The Texas Supreme Court transferred this appeal from the Third Court of Appeals
to this Court pursuant to its docket equalization powers. See TEX. GOV’T CODE
ANN. § 73.001 (West 2013).
APP. P. 26.2(a)(1). The trial court had revoked appellant’s community supervision,
adjudicated him guilty of the third-degree felony offense of possession of a
controlled substance, namely, methamphetamine, assessed his punishment at seven
years’ confinement, and ordered him to pay a $2,500.00 fine and $180.00 in
restitution. See TEX. HEALTH & SAFETY CODE ANN. § 481.115(c) (West 2010); TEX.
PENAL CODE ANN. § 12.34 (West 2011). The trial court certified that this was not a
plea-bargain case and that appellant had a right of appeal, and appointed new counsel
for appellant. See TEX. R. APP. P. 25.2(a)(2).
Because appellant’s counsel had failed to timely file a brief, this Court’s
February 8, 2018 Order of Abatement had abated this case for a late-brief hearing.
See TEX. R. APP. P. 38.8(b)(2). On March 5, 2018, the trial court held an abatement
hearing with the pro se appellant, via teleconference, and counsel for the State in
person. Because appellant’s appointed counsel was unable to complete the brief for
personal reasons, the trial court told appellant that it was prepared to appoint new
counsel, but first asked appellant whether he still wanted to appeal his conviction.
Appellant informed the court that he no longer wanted to continue his appeal because
he had recently been granted parole. After the trial court admonished appellant that
receiving parole would not change his conviction and that if he decided not to
continue his appeal, the Court of Appeals would dismiss his appeal, appellant
confirmed that he understood, and the State had no objection. On March 5, 2018,
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the court reporter filed a supplemental reporter’s record of this abatement hearing.
On March 6, 2018, the district clerk filed a supplemental clerk’s record with the trial
court’s findings of fact and conclusions of law, concluding that appellant does not
want to appeal his conviction.
Appellant has not filed in this Court a motion to dismiss his appeal. See TEX.
R. APP. P. 42.2(a). However, given appellant’s unopposed and unequivocal
statement that he wanted to dismiss his appeal on the record of the abatement
hearing, we conclude that good cause exists to suspend the operation of rule 42 and
to construe this as appellant’s motion to dismiss. See id. 2, 42.2(a); Conners v. State,
966 S.W.2d 108, 110–11 (Tex. App.—Houston [1st Dist.] 1998, pet. ref’d)
(suspending rule 42 and dismissing appeal based on appellant’s unequivocal
testimony at abatement hearing desiring dismissal of appeal). We have not yet
issued a decision in this appeal. See TEX. R. APP. P. 42.2(b).
Accordingly, we reinstate this appeal and grant appellant’s motion to dismiss
the appeal. See TEX. R. APP. P. 42.2(a), 43.2(f).
PER CURIAM
Panel consists of Justices Jennings, Keyes, and Higley.
Do not publish. TEX. R. APP. P. 47.2(b).
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