in Re: David Theriot

• Court: Court of Appeals of Texas
• Decided: November 13, 2009
• Docket: 13-09-00598-CR
• Status: Published

Opinion

NUMBER 13-09-00598-CR

COURT OF APPEALS THIRTEENTH DISTRICT OF TEXAS CORPUS CHRISTI – EDINBURG

IN RE: DAVID THERIOT

On Petition for Writ of Mandamus.

MEMORANDUM OPINION

Before Justices Yañez, Benavides, and Vela Memorandum Opinion Per Curiam

On October 30, 2009, relator, David Theriot, filed a pro se petition for writ of

mandamus, in which he complained that the trial court, the 329th District Court of Wharton

County, had refused to rule on his motion for an out-of-time appeal. On November 4,

2009, this Court requested a response from the State of Texas, by and through the

Criminal District Attorney in and for Wharton County, Texas.

On November 12, 2009, the State of Texas, by and through Josh W. McCown,

District Attorney for the 329th Judicial District, filed a response. In the response, the State

asserted that relator is not entitled to an appeal because: (1) pursuant to a plea-bargain,

he entered a plea of guilty; (2) the trial court accepted the plea-bargain, and imposed punishment consistent with the plea agreement; and (3) the trial court’s certification states

that this is “a plea-bargain case, and the defendant has NO RIGHT OF APPEAL,” and

“[t]he defendant has waived the right of appeal.”1 The State attached (1) a copy of “plea

admonishments” and waiver of right to appeal, signed by relator; (2) a copy of the “agreed

punishment recommendation,” signed by relator; and (3) a copy of the “trial court’s

certification of defendant’s right of appeal,” stating that relator has no right of appeal.

Although the State’s response addressed the reasons that relator’s motion for an

out-of-time appeal should be denied, it did not address the specific matter of which relator

complains: that the trial court has “refused to act” on relator’s motion. Accordingly, we

grant relator’s petition for writ of mandamus and order the trial court to rule on relator’s

motion for an out-of-time appeal. We are confident the trial court will comply; the writ will

issue only if it does not.

PER CURIAM

Do not publish. See TEX . R. APP. P. 47.2(b).

Memorandum Opinion delivered and filed this 13th day of November, 2009.

1 Texas Rule of Appellate Procedure 25.2(a)(2) states:

A defendant in a crim inal case has the right of appeal under Code of Crim inal Procedure article 44.02 and these rules. The trial court shall enter a certification of the defendant’s right of appeal each tim e it enters a judgm ent of guilt or other appealable order. In a plea bargain case— that is, a case in which a defendant’s plea was guilty or nolo contendere and the punishm ent did not exceed the punishm ent recom m ended by the prosecutor and agreed to by the defendant— a defendant m ay appeal only:

(A) those m atters that were raised by written m otion filed and ruled on before trial, or

(B) after getting the trial court’s perm ission to appeal.

T EX . R. A PP . P. 25.2(a)(2).