¶1dissenting.
¶2I dissent to the majority’s denial of appellant’s request to dismiss this appeal. Although the motion to dismiss is not sworn to, as required by previous decisions of this Court, it is signed personally by the appellant and by his attorney in the case. The *621majority refuses to grant appellant’s request by relying on the ancient rule that such a request must be by sworn motion.
¶3The majority advances no purpose for the rule relied on, beyond the speculation that authentication “serves to assure this Court that the appellant personally decided to forego his right of appeal, and gave some consideration to his decision.”
¶4If the majority seeks assurance that the request to dismiss was appellant’s own decision, they should be satisfied by the comparison of appellant’s signature on the motion to dismiss with his signature on the application for habeas corpus relief that initiated this proceeding. It is obvious even to the untrained eye that the signatures match. Why should he who started this process not be allowed to end it?
¶5The second speculative basis for the rule relied on by the majority is that a sworn motion assures this Court that appellant “gave some consideration to his decision.” From the flood of pro se habeas corpus applications and other assorted motions that this Court receives from inmates of the various penal institutions in this State, I would suggest that a pro se sworn motion does not necessarily mean, and certainly should not be taken by this Court as assurance, that some threshold quantum of consideration was given to the matter asserted in that motion. Further, whatever, assurance this Court requires that due consideration was given to the consequences of a dismissal, the fact that a motion is cosigned by the appellant’s attorney should be sufficient. It is counsel’s duty to advise his client regarding the consequences of such a motion, and counsel’s signature should support a presumption that such duty was fulfilled. At the very least it offers as much assurance of due consideration as a pro se sworn motion.
¶6To the extent that the majority relies on the historical fact that the rule has been around for a long time, I would point out that two of the earlier decisions on the subject, Jennings v. State, 151 S.W. 1050, and Rivera v. State, 105 S.W. 193, explicitly stated that the requirement of a sworn motion to dismiss was founded in “the rules of this court.” Today’s rules of this Court (Art. 44.33, V.A.C.C.P.) do not address the requirements of a motion to dismiss and through apparent oversight the old rule lives on in case law. I would overrule the old rule and grant appellant’s motion to dismiss.
¶7I dissent.