EX PARTE ALBERT GARRY v. << (2012)

MEMORANDUM OPINION

Opinion By Justice Richter

In 2008, Albert Garry was found guilty of driving while intoxicated and received a probated sentence.   That conviction was affirmed on direct appeal.   See Garry v. State, No. 05–08–00646–CR (Tex.App.—Dallas May 18, 2009, no pet.) (not designated for publication).   In 2011, appellant filed an application for writ of habeas corpus challenging the effectiveness of his trial counsel.   The trial judge denied the application on August 19, 2011.   Appellant filed a notice of appeal on September 16, 2011.   On September 19, 2011, the trial judge set aside the order denying the application for writ of habeas corpus and set a hearing for October 21, 2011.   The appeal based on the September 16, 2011 notice of appeal was docketed in this Court on September 28, 2011.   On November 21, 2011, the trial judge sent the parties a letter informing them he was denying the relief sought and directed the State to prepare a proposed order.

Because the clerk's record did not contain a copy of the trial court's order ruling on the application for writ of habeas corpus following the October 21, 2011 hearing, we ordered that a supplemental clerk's record be filed with that order.   On January 17, 2012, we received a supplemental clerk's record containing the trial court's January 12, 2012 order denying appellant the relief sought by his application for writ of habeas corpus.

In a letter to the parties, we questioned our jurisdiction over the appeal based on appellant's September 16, 2011 notice of appeal.   Appellant responded first with a motion to dismiss this appeal, asserting a new notice of appeal would be filed challenging the January 12, 2012 order.   On February 1, 2012, appellant's counsel filed a letter brief agreeing we lack jurisdiction based on the September 16, 2011 notice of appeal, and again stating a new notice of appeal had been filed from the January 12, 2012 order.

The Court cannot grant appellant's motion to dismiss because it is not signed by both appellant and counsel.   See Tex.R.App. P. 42.2(a).   However, based on appellant's assertion that he has filed a new notice of appeal challenging the trial court's January 12, 2012 written order denying him the relief sought, we agree the appeal from the earlier order is now moot.

We dismiss the appeal as moot.¹

FOOTNOTES

FN1. At such time as the new notice of appeal is forwarded to this Court, it will be docketed under a new number, and the Court will transfer the record filed in the above appeal into the new appeal..  FN1. At such time as the new notice of appeal is forwarded to this Court, it will be docketed under a new number, and the Court will transfer the record filed in the above appeal into the new appeal.

MARTIN RICHTER JUSTICE