Opinion issued December 22, 2020
In The
Court of Appeals
For The
First District of Texas
————————————
NO. 01-19-00784-CR
———————————
MELISSA PERRY, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the County Criminal Court Law No. 9
Tarrant County, Texas1
Trial Court Case No. 1577602 (Counts V, VI, VIII, and IX)
MEMORANDUM OPINION
1
The Texas Supreme Court transferred this appeal from the Court of Appeals for the
Second District of Texas to this Court pursuant to its docket-equalization powers.
See Misc. Docket No. 19–9091 (Tex. Oct. 1, 2019); see also TEX. GOV’T CODE
ANN. § 73.001 (“The supreme court may order cases transferred from one court of
appeals to another at any time, in the opinion of the supreme court, there is good
cause for the transfer.”).
A jury found appellant, Melissa Perry, guilty of four separate counts of the
misdemeanor offense of obstructing a highway or other passageway,2 and the trial
court assessed her punishment at confinement for seventy-five days for each “count”
to run concurrently, and a fine of $200 for “count” V. The trial court then suspended
appellant’s sentence of seventy-five-days confinement and placed her on community
supervision for a period of twelve months. Appellant filed a notice of appeal.
Appellant’s brief was due to be filed with this Court on September 10, 2020.
See TEX. R. APP. P. 38.6(a). Appellant failed to timely file her brief. On September
15, 2020, the Clerk of this Court notified appellant’s retained counsel, Bethel T.
Zehaie, that a brief was not filed and requested a response no later than September
25, 2020. No response was received and no brief was filed.
Pursuant to Texas Rule of Appellate Procedure 38.8, on October 20, 2020, we
abated this appeal and remanded the case to the trial court to hold a hearing to
determine, among other things, whether appellant wished to prosecute her appeal.
On November 3, 2020, the trial court held a hearing at which appellant, her retained
appellate counsel, and counsel for the State were present.3 On November 4, 2020, a
2
See TEX. PENAL CODE ANN. § 42.03.
3
All parties attended the hearing by video teleconference in accordance with the
Texas Supreme Court’s Emergency Order Regarding the COVID-19 State of
Disaster.
2
supplemental reporter’s record, including a stenographic transcript of the hearing,
was filed with this Court.
During the hearing, the trial court noted that the case was remanded to make
a determination regarding whether appellant “wishe[d] to continue her appeal,” and
if so, to determine if her retained counsel intended to withdraw from the appeal. The
trial court directed questioning at appellant, asking whether she “wish[ed] to
continue [her] appeal of the conviction in th[e] case,” to which appellant responded
“no.” The trial court then admonished appellant regarding her decision to abandon
her appeal, including advising appellant regarding the applicable appellate timelines.
The trial court further confirmed that appellant’s decision was the “free and
voluntary determination” of appellant, and that “[n]o one [was] forcing [appellant]
to abandon [her] appeal.” In response, appellant confirmed on the record to the trial
court that the decision to abandon her appeal was made “without any mental
reservation.”
Texas Rule of Appellate Procedure 42.2 states that an appellant and her
attorney “must sign” a motion to dismiss a criminal appeal. TEX. R. APP. P. 42.2(a).
Accordingly, on November 17, 2020, the Clerk of this Court issued a notice to
appellant requesting that, within fifteen days of the notice; i.e., on or before
December 2, 2020, appellant file either a motion to dismiss the appeal in compliance
with the Texas Rules of Appellate Procedure, or a response demonstrating that,
3
despite her representations to the trial court, she wished to continue prosecution of
her appeal. More than two weeks have passed since the deadline stated in our notice,
no response has been received, and no motion to dismiss has been filed.
Based on appellant’s clear statements on the record at the trial court’s hearing,
we conclude that good cause exists to suspend the operation of Texas Rule of
Appellate Procedure 42 in this appeal. TEX. R. APP. P. 2, 42; Conners v. State, 966
S.W.2d 108, 110–11 (Tex. App.—Houston [1st Dist.] 1998, pet. ref’d); see, e.g.,
Truong v. State, No. 01-17-00343-CR, 2018 WL 1630177, at *1 (Tex. App.—
Houston [1st Dist.] Apr. 5, 2018, no pet.) (mem. op., not designated for publication)
(suspending operation of rule 42 and construing abatement record as appellant’s
motion to dismiss appeal); Luviano v. State, No. 01-09-00755-CR, 2011 WL
5428964, at *1 (Tex. App.—Houston [1st Dist.] Nov. 10, 2011, no pet.) (mem. op.,
not designated for publication) (concluding appellant’s statements provided good
cause to suspend rule 42 requirement that appellant sign motion to dismiss and
dismissing appeal). We have not yet issued a decision in the appeal. See TEX. R.
APP. P. 42.2(b).
Accordingly, based on the record before us, we reinstate the appeal, and grant
the oral motion to dismiss the appeal made by appellant to the trial court at the
November 3, 2020 hearing, and dismiss the appeal. See TEX. R. APP. P. 43.2(f). We
dismiss all other pending motions as moot.
4
PER CURIAM
Panel consists of Justices Goodman, Landau, and Adams.
Do not publish. TEX. R. APP. P. 47.2(b).
5