EX PARTE JAMES RAY UPOLE (Other)

SUPREME COURT CASES

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State: Texas

Court: Criminal Court of Appeals

Docket No: WR-74,925-01

Case Date: 11/24/2010

Plaintiff: Jeffrey Rodriguez

Defendant: The State of Texas--Appeal from 379th Judicial District Court of Bexar County

Preview:Jeffrey Rodriguez v. The State of Texas--Appeal from 379th Judicial District Court of Bexar County
MEMORANDUM OPINION

No. 04-07-00299-CR

Jeffrey RODRIGUEZ, Appellant

v.

The STATE of Texas, Appellee

From the 379th Judicial District Court, Bexar County, Texas Trial Court No. 2004-CR-0023 Honorable Bert Richardson, Judge Presiding

PER CURIAM Sitting: Sandee Bryan Marion, Justice Phylis J. Speedlin, Justice Rebecca Simmons, Justice Delivered and Filed: July 25, 2007

DISMISSED The trial court imposed sentence on April 5, 2007. The trial court's judgment, signed on April 11, 2007, states appellant pled nolo contendere to murder. However, the clerk's record contains a copy of an April 5, 2007 order granting appellant's Motion to Withdraw Plea of "No contest." The trial court's Certification of Defendant's Right of Appeal states this "is a plea-bargain case, and the defendant has NO right of appeal." Appellant's notice of appeal states

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appellant wishes to appeal the ruling on the Motion to Withdraw Plea. See Tex. R. App. P. 25.2(a)(2) (in a plea bargain case, a defendant may appeal only those matters raised in a written motion ruled on before trial or after obtaining the trial court's permission to appeal). Because it was unclear whether appellant was allowed to withdraw his plea and whether appellant has a right to appeal, we abated this case to the trial court and ordered the trial court to conduct a hearing to determine whether (1) the judgment accurately reflects a plea of nolo contendere, (2) appellant's Motion to Withdraw Plea was granted or denied, and (3) appellant has the right to appeal. On June 19, 2007, the trial court filed the reporter's record from the April 5, 2007 hearing on appellant's Motion to Withdraw Plea. This record reflects that, at the conclusion of the hearing, the trial denied appellant's motion to withdraw his plea of no contest. Although it is unclear from the record whether appellant's motion to withdraw was denied before or after trial, we note that appellant's counsel, Ms. Angela Moore, has filed a letter with this court agreeing that appellant has no right to appeal. It therefore appears that the trial court's Certification of Defendant's Right of Appeal correctly states this "is a pleabargain case, and the defendant has NO right of appeal." Accordingly, on June 26, 2007, this court issued an order stating this appeal would be dismissed pursuant to Rule 25.2(d) unless an amended trial court certification that shows appellant has the right of appeal was made part of the appellate record. See Daniels v. State,110 S.W.3d 174 (Tex. App.--San Antonio 2003, order); Tex. R. App. P. 25.2(d); 37.1. No amended trial court certification has been filed; therefore, this appeal is dismissed. PER CURIAM DO NOT PUBLISH

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