Jenise Djeree Benjamin v. the State of Texas

Opinion issued December 14, 2023




                                       In The

                               Court of Appeals
                                      For The

                           First District of Texas
                             ————————————
                               NO. 01-23-00002-CR
                            ———————————
                   JENISE DJEREE BENJAMIN, Appellant
                                         V.
                       THE STATE OF TEXAS, Appellee


                     On Appeal from the 21st District Court
                          Washington County, Texas
                         Trial Court Case No. 18781


                          MEMORANDUM OPINION

      The appellate record was due to be filed by March 3, 2023. The District

Clerk filed a request for an extension of time, which the court granted until April 3,

2023. On March 7, 2023, the court reporter filed a notice that appellant had not

requested preparation of the reporter’s record and no payment had been received.
On April 3, 2023, the District Clerk advised that no designation had been filed and

no payment arrangements had been made. On June 22, 2023, the Court issued an

order abating the appeal and directing the trial court to hold a hearing to determine

if appellant wished to pursue her appeal, and if so, whether she was indigent and

entitled to proceed without payment of costs for the appellate record.

      On August 11, 2023, the trial court filed a supplemental clerk’s record

containing a letter, signed by the trial judge, stating that appellant appeared at the

hearing and stated she no longer wished to pursue her appeal. On October 25,

2023, the court reporter filed the hearing record, which included appellant’s

statement on the record that she no longer wished to pursue her appeal.

      Appellant has not filed a motion to dismiss her appeal. See TEX. R. APP. P.

42.2(a). Because appellant stated in open court that she did not wish to pursue her

appeal, we apply Rule 2 to suspend the Rule 42.2(a) requirement that appellant file

a written motion to dismiss. We accept her testimony before the trial court as a

motion for voluntary dismissal of her appeal, which we grant. See Mendoza v.

State, No. 01-03-01288–CR, 

, at *1 (Tex. App.—Houston [1st

Dist.] Apr. 29, 2004, no pet.) (mem. op.) (finding good cause to suspend operation

of Rule 42.2(a) and dismiss appeal based on appellant’s statements on record that

he no longer wished to pursue his appeal).

      We dismiss the appeal. Any pending motions are dismissed as moot.


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                                 PER CURIAM
Panel consists of Justices Kelly, Hightower, and Guerra.
Do not publish. TEX. R. APP. P. 47.2(b).




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