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Court of Appeals of Texas,Waco.

Eva Darlene BURLESON, Appellant, v. The STATE of Texas, Appellee.

No. 10-00-361-CR.

Decided: December 31, 2002

Before Chief Justice DAVIS, Justice VANCE, and Justice GRAY. Stan Schwieger, Waco, for Appellant. Roy DeFriend, Limestone County/Dist. Atty., Groesbeck, for Appellee.


A jury convicted Eva Darlene Burleson of theft of property valued at $1,500 or more but less than $20,000.   The court sentenced Burleson to two years' confinement in a state jail, suspended imposition of sentence, and placed her on community supervision.   The court required Burleson to serve 180 days in a state jail as a condition of her community supervision.1  See Tex.Code Crim. Proc. Ann. art. 42.12, § 15(d) (Vernon Supp.2003).

We affirmed Burleson's conviction by opinion dated August 28, 2002.   Burleson v. State, No. 10-00-361-CR, 2002 Tex.App. LEXIS 6259 (Tex.App.-Waco Aug. 28, 2002, no pet. h.).   After we extended the time for filing a motion for rehearing, Burleson filed a pleading entitled “Defendant's Waiver of Further Appellate Rights” (hereinafter, the “motion”).   In the motion, Burleson expresses a desire to withdraw her notice of appeal.

Rule of Appellate Procedure 42.2(b) provides:

After the court of appeals hands down its opinion, an appellant may not withdraw the notice of appeal unless the other parties consent and the court of appeals approves the withdrawal.   If consent and approval are obtained, the appellate opinion must be withdrawn and the appeal dismissed.   The appellate clerk must send notice of the dismissal to the trial court clerk.

Tex.R.App. P. 42.2(b).

The State indicated its consent to Burleson's withdrawal of her notice of appeal by signing the motion.   The motion indicates that the State will recommend that the trial court delete the 180-day confinement condition of Burleson's community supervision in exchange for withdrawal of the notice of appeal.

We approve the post-opinion withdrawal of Burleson's notice of appeal.   See Tex.R.App. P. 42.2(b).  We withdraw the opinion and judgment dated August 28, 2002.   We substitute this opinion and the judgment of even date herewith for them.   We dismiss Burleson's appeal.   Pursuant to Rule 42.2(b), the Clerk of this Court will send notice of this dismissal to the district clerk.  Id.


1.   Burleson posted an appeal bond, thereby delaying the commencement of her community supervision.   See Tex.Code Crim. Proc. Ann. art. 44.04(c);  Surety Corp. of Am. v. State, 550 S.W.2d 689, 690 (Tex.Crim.App.1977);  McConnell v. State, 34 S.W.3d 27, 30 (Tex.App.-Tyler 2000, no pet.);  Cuellar v. State, 985 S.W.2d 656, 658 (Tex.App.-Houston [1st Dist.] 1999, no pet.).


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