                                    NO. 07-07-0266-CR

                              IN THE COURT OF APPEALS

                       FOR THE SEVENTH DISTRICT OF TEXAS

                                       AT AMARILLO

                                          PANEL D

                                   DECEMBER 21, 2009

                           ______________________________

                           JAIME TREVINO, JR., APPELLANT

                                              V.

                           THE STATE OF TEXAS, APPELLEE

                        _________________________________

             FROM THE 379TH DISTRICT COURT OF BEXAR COUNTY;

            NO. 2004CR6365; HONORABLE BERT RICHARDSON, JUDGE
                      _______________________________


Before QUINN, C.J., and CAMPBELL and PIRTLE, JJ.


                      CONCURRING AND DISSENTING OPINION


       I agree with the majority’s disposition of Appellant’s points of error three through six;

however, I write separately to express my opinion that the trial court erred by failing to

permit Appellant to withdraw his plea of guilty. See art. 26.13(2), Tex. Code Crim. Proc.

Ann. (Vernon Supp. 2009). As stated in the majority opinion, the trial court implicitly found

that it had “accepted” the plea agreement, making it a binding agreement between the
State and Appellant. State v. Moore, 240 S.W.3d 248 (Tex.Crim.App. 2007). However,

rather than follow that agreement as to punishment, the trial court found Appellant violated

a non-existent condition that he be a “viable” witness. In doing so, the trial court implicitly

rejected the negotiated plea bargain agreement and was, therefore, statutorily obligated

to permit Appellant to withdraw his plea of guilty. Having failed to do so, the trial court

erred. I would sustain Appellant’s second issue and reverse and remand.




                                                   Patrick A. Pirtle
                                                       Justice




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