Carlos Michael Lopez v. State

Summary

This concurring opinion addresses whether a Texas appellate court may involuntarily dismiss a criminal appeal before submission when the State claims the defendant waived the right to appeal. The opinion concludes that Texas Rule of Appellate Procedure 42.4 authorizes involuntary dismissal on the State’s motion only when the appellant has escaped from custody, but recognizes that a court may dismiss for lack of jurisdiction after providing procedural due process and adequate notice. The concurrence urges the Texas Court of Criminal Appeals to amend Rule 42 to establish a procedure comparable to civil involuntary-dismissal practice.

Holdings

1. Texas Rule of Appellate Procedure 42.4 authorizes the State to move for involuntary dismissal of a criminal appeal only when the appellant has escaped from custody and has not returned within ten days; it does not authorize the State's motion based on an alleged waiver of the right to appeal.
2. In the absence of a rule specifically authorizing the State's motion, a court of appeals should provide procedural due process and due course of law, including appropriate notice, before involuntarily dismissing a criminal appeal.

Questions Presented

1. Whether Texas Rule of Appellate Procedure 42.4 authorizes the State to move for involuntary dismissal of a criminal appeal on grounds other than the appellant's escape from custody.
2. What procedure a Texas court of appeals should follow when dismissal of a criminal appeal is necessary before submission of briefs, including when the court believes it lacks jurisdiction.
3. Whether procedural due process and due course of law require notice and an opportunity to respond before an appellate court involuntarily dismisses a criminal appeal.

Disposition

dismissed