Opinion
No. 1931-02
Delivered: November 19, 2003. DO NOT PUBLISH.
On State's Petition for Discretionary Review from the Thirteenth Court of Appeals, Nueces County.
OPINION
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 inGutierrez.