Opinion issued November 24, 2015




                                      In The

                               Court of Appeals
                                     For The

                          First District of Texas
                             ————————————
                              NO. 01-15-00206-CR
                            ———————————
                          CODY CRYMES, Appellant
                                        V.
                       THE STATE OF TEXAS, Appellee


                   On Appeal from the 253rd District Court
                         Chambers County, Texas
                        Trial Court Case No. 17166


                          MEMORANDUM OPINION

      On September 24, 2015, this court issued an opinion, dismissing the appeal

because the trial court had certified that Crymes had no right of appeal and that he

had waived the right of appeal. Crymes filed a motion for rehearing, claiming he

does have the right of appeal of the denial of his motion to withdraw his plea. We
requested a response from the State, but none has been filed. We deny the motion

for rehearing, withdraw our opinion of September 24, 2015, and substitute the

following opinion.

                                       Background

      The trial court held a plea hearing on February 7, 2014. During that hearing,

the trial court reviewed the terms of the plea bargain, asked Crymes if he

understood the range of punishment, admonished Crymes regarding consequences

of pleading guilty and sex offender status, and asked Crymes how he pled. Crymes

stated, “Guilty.” After further questioning, the court found Crymes was competent

and that his plea was freely and voluntarily given. The State advised the court that,

as part of the plea bargain, the State agreed to dismiss three aggravated sexual

assault charges and two sexual assault charges against Crymes, leaving only one

charge of sexual assault. For that charge, the State agreed to reduce the charge

from a first degree to a second degree felony. The trial court also accepted Exhibit

1, a sworn stipulation, signed by Crymes, in which he agreed to the plea of guilty,

stated his plea was “freely” and “voluntarily” given and that he is competent, and

agreed he was guilty of the offense.         Crymes also waived a pre-sentence

investigation. Although the parties had agreed to a sentence of 10 years deferred

adjudication community supervision, the parties agreed to delay imposition of the

agreed-upon sentence until June to allow Crymes to travel to Louisiana to be with


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his wife for the birth of their child. At the end of the plea hearing, the trial judge

said he would withhold any findings until Crymes returned for sentencing.

Nevertheless, the trial judge completed the certification of the right of appeal at

that time, noting that Crymes did not have the right of appeal because of the plea

bargain. Both Crymes and his counsel signed this certification.

      When the parties returned to court on June 27, 2014, the trial court granted

Crymes’s motion to substitute counsel and reset the hearing until September. On

September 5, 2014, Crymes’s new counsel filed a motion to withdraw his plea,

claiming that because the trial court had not pronounced sentence or taken the case

under advisement, Crymes could withdraw his plea as a matter of right. The trial

court disagreed, and concluded he had the discretion to determine whether to allow

withdrawal of the plea. He then denied the motion, stating it was his belief the

defendant could be facing a longer period of incarceration if he withdrew his plea.

Crymes’s counsel asked the trial court to change the certification to reflect Crymes

had a right of appeal and the following exchange took place:

      THE COURT: No. No, I’m not going to do that. You – you’ve got
      your – your contention and you can appeal it up and the Court of
      Appeals and maybe beyond can a determination whether he has the
      right to withdraw his – his plea.

      MR. OLIVER: So, to be clear, Judge, the Court is not going to allow
      him to check the box that says there’s a written motion? Then, can we
      ask the Court’s –



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      After this exchange, the trial court did not respond to counsel’s question and

moved on to sentencing concerns.

                                          Analysis

      On rehearing, Crymes contends despite the trial court’s certification, we

should not have dismissed his appeal because the certification is defective. In

Dears v. State, 154 S.W.3d 610 (Tex. Crim. App. 2005), the Court of Criminal

Appeals held that, if the trial court’s certification is defective, the appellate court

may order the trial court to provide a correct one. The Court defined “defective”

as one that is “correct in form but which, when compared with the record before

the court, proves to be inaccurate.” Id. at 614. Under Rule 25.2, a defendant who

has entered into a plea bargain with the state may appeal “those matters raised by

written motion and ruled on before trial” or after obtaining the trial court’s

permission to appeal. TEX. R. APP. P. 25.2(a)(2)(A)-(B).

      Crymes contends he may appeal the denial of the motion to withdraw his

plea under TEX. R. APP. P. 25.2(a)(2)(A) because he filed a written motion to

withdraw the plea after the plea hearing but before the trial court imposed a

sentence. The State disagrees, arguing that the motion was filed too late—after the

trial court took the case under advisement—and that Crymes’s motion to withdraw

is not a “pretrial motion.” See TEX. R. APP. P. 25.2(a)(2)(A) (allowing appeal after

plea bargain of matters “raised by written motion filed and ruled on before trial”).


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Thus, we must determine whether Crymes’s motion to withdraw the plea is a

pretrial motion and therefore denial of that motion is appealable under Rule

25.2(a)(2)(A).

      An appellant may withdraw his plea as a matter of right if the motion is filed

before a trial court has “taken a case under advisement” or has pronounced

judgment.   DeVary v. State, 615 S.W.2d 739, 740 (Tex. Crim. App. 1981)

(defendant may withdraw guilty plea as matter of right without assigning reason

before judgment is pronounced or case is taken under advisement). If the motion is

filed after the court has taken the case under advisement or has pronounced

judgment, the trial court has discretion whether to allow withdrawal of the plea.

Id.

      The courts have found cases were “taken under advisement” when the judge

had (1) passed the case for preparation of a pre-sentence investigation, (2)

pronounced the defendant guilty and was in the process of pronouncing judgment,

or (3) had accepted the defendant’s plea and stipulation of evidence and had

admonished him. See Tellis v. State, No. 14-99-01097-CR, 2000 WL 280345, at

*1 (Tex. App.—Houston [14th Dist.] March 16, 2000, no pet.) (holding motion to

withdraw plea was after trial court took case under advisement because trial court

passed case for preparation of pre-sentence investigation); Milligan v. State, 324

S.W.2d 864, 865 (Tex. Crim. App. 1959) (holding request to withdraw plea was


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after trial court took case under advisement because trial court had “concluded that

appellant was guilty and was in the process of pronouncing judgment”); Williams

v. State, No. 11-01-00331-CR, 2004 WL 212602, at *2 (Tex. App.—Eastland Feb.

5, 2004, pet. ref’d) (holding case taken under advisement when trial court

determined appellant had previously entered plea knowingly and voluntarily and

had signed a confession and stipulation of evidence); Knox v. State, No. 04-02-

00757-CR, 2003 WL 22082208, at *1 (Tex. App.—San Antonio Sept. 10, 2003,

pet. ref’d) (holding that trial court had taken case under advisement when

defendant expressly and voluntarily waived his right to jury trial, confessed to the

offense charged, received statutory admonishments, and entered a plea of guilty).

      Here, the trial court had admonished Crymes, received his plea of guilty,

found it was freely and voluntarily given, and received a sworn stipulation signed

by Crymes in which he stated he understood the admonishments, agreed to the

plea, agreed that the plea was freely and voluntarily given, admitted he was guilty

of the offense, and waived the pre-sentence investigation.1 Therefore, we hold that

the trial court had taken the case under advisement before Crymes filed his motion


1
      Certainly, the trial court believed he had taken the case under advisement
      because he referred Crymes’s counsel to his discussions about the plea
      agreement, his conclusion on the record that Crymes had no absolute right to
      withdraw his plea, and that, even if he had not used the word “accept” in
      regards to the plea, he did so by implication by taking Crymes’s plea of
      guilty, admonishing him, and stating that he was reconvening at a later date
      for sentencing.
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to withdraw the plea. See Williams, 2004 WL 212602, at *2; Knox, 2003 WL

22082208, at *1.

      Because the motion to withdraw the plea was filed after the court had taken

the case under advisement, the motion was filed too late to be considered a pretrial

motion. See Moreno v. State, 90 S.W.3d 887, 888 (Tex. App.—San Antonio 2002,

no pet.) (holding that after case is taken under advisement a subsequently-filed

motion to withdraw plea of guilty is not a pretrial motion). Crymes’s motion to

withdraw his plea is not a motion “filed or ruled on before trial” and therefore,

Crymes may not appeal the denial of this motion.              See TEX. R. APP. P.

25.2(a)(2)(A). Thus, the trial court did not err in concluding that Crymes has no

right to appeal. See Chavez v. State, 183 S.W.3d 675, 680 (Tex. Crim. App. 2006)

(“A court of appeals, while having jurisdiction to ascertain whether an appellant

who plea-bargained is permitted to appeal by Rule 25.2(a)(2), must dismiss a

prohibited appeal without further action, regardless of the basis for the appeal.”).

                                        Conclusion

      Because Crymes did not have a right to appeal, we dismiss the appeal for

lack of jurisdiction.

                                   PER CURIAM
Panel consists of Justices Jennings, Higley, and Brown.

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


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