IN THE COURT OF CRIMINAL APPEALS
OF TEXAS
NO. 1931-02
WHITNEY RICE, Appellant
v.
THE STATE OF TEXAS
ON STATE'S PETITION FOR DISCRETIONARY REVIEW
FROM THE THIRTEENTH COURT OF APPEALS
NUECES COUNTY
Per Curiam
O P I N I O N
Appellant was convicted of possession of cocaine, and his punishment was assessed
at five years community supervision. The State moved to revoke community supervision, and
Appellant pled true in exchange for the State's punishment recommendation of fourteen
months. The trial court revoked Appellant's community supervision and assessed punishment
at two years, refusing to follow the plea bargain. The Court of Appeals reversed, relying on its
previous opinion in Gutierrez v. State, 65 S.W.3d 362 (Tex. App.-Corpus Christi 2001), which
held that when a trial court does not follow a plea bargain agreement in a probation revocation,
a defendant is entitled to withdraw his plea of true. Rice v. State, No. 13-01-276-CR (Tex.
App.- Corpus Christi 2002). The State filed a petition for discretionary review. This Court recently reversed Gutierrez and held that there is no right to withdraw a plea
of true in a revocation hearing if the trial court chooses not to follow the prosecutor's
punishment recommendation. Gutierrez v. State, 108 S.W. 3d 304 (Tex. Crim. App. 2003).
At the time the Court of Appeals handed down its opinion, it did not have the benefit of our
opinion in Gutierrez. Accordingly, we grant the State's petition for discretionary review, vacate
the judgment of the Court of Appeals, and remand to that court for reconsideration in light of
our opinion in Gutierrez.
Delivered: November 19, 2003
Do not publish