Perry Joe Ray v. State
Perry Joe Ray v. State
Opinion
IN THE
TENTH COURT OF APPEALS
No. 10-06-00374-CR
Perry Joe Ray,
Appellant
v.
The State of Texas,
Appellee
From the 77th District Court
Limestone County, Texas
Trial Court No. 10946-A
MEMORANDUM Opinion
Perry Joe Ray filed this pro se appeal from his plea-bargained conviction for felony driving while intoxicated. However, Ray signed a full-page, detailed “Waiver of Appeal” as part of the plea proceedings, which document was also signed by Ray’s trial counsel and the prosecutor, and which was approved by the trial court. In the face of this express waiver of the right of appeal, we dismiss Ray’s appeal. See Monreal v. State, 99 S.W.3d 615, 622 (Tex. Crim. App. 2003).
PER CURIAM
Before Chief Justice Gray,
Justice Vance, and
Justice Reyna
(Chief Justice Gray dissenting with note)*
Appeal dismissed
Opinion delivered and filed November 29, 2006
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[CR25]
* (Dissenting note: “No separate opinion will be issued. Before I would summarily dismiss this appeal, I would give notice to the defendant of our intent to dismiss the appeal. Tex. R. App. P. 44.3. When we raise similar issues on our own initiative in civil proceedings, we must give at least 10 days notice. Tex. R. App. P. 42.3. And it is fairly routine that before we dismiss an appeal because the certificate of the right to appeal indicates that it is a plea-bargained case and the defendant has no right of appeal, as in this case, we first give notice of our intent to dismiss the appeal, so that the defendant has the opportunity to explain why dismissal would be improper. I would notify the defendant of our intention and give him the opportunity to respond before I vote to dismiss his appeal.
Monreal is not authority to dismiss an appeal without notice on the basis of a waiver. Monreal v. State, 99 S.W.3d 615 (Tex. Crim. App. 2003). In Monreal, notice was provided in the form of a motion to dismiss filed by the State. See id. at 616.
For the foregoing reasons, I cannot, at this time, vote to dismiss Ray’s appeal. Accordingly, I must dissent.”)
The trial court must then appoint another attorney to present all arguable grounds for appeal. See id. We do not rule on the ultimate merits of the issues raised by Steele in his pro se response at this juncture. Id. If we determine that there are arguable grounds for appeal, Steele is entitled to have new counsel address the merits of all of the issues raised. Id. “Only after the issues have been briefed by new counsel may [we] address the merits of the issues raised.” Id.
Our independent review of the record indicates that Steele, although indigent, was assessed attorney’s fees in the judgment of conviction. Based on our independent review of the record, we find that this is an arguable ground for appeal. Because court-appointed counsel’s brief does not address this arguable ground, we abate this appeal and remand this case to the trial court for the withdrawal of present counsel and the appointment of new counsel. A copy of the order appointing new counsel shall be forwarded to the Clerk within ten days of the date of this opinion. Only after new counsel is appointed and the issue identified in this opinion, as well as any other issues that counsel wishes to advance in the brief on the merits, are addressed will we reach the merits of this appeal. Upon receipt of the appointment of new counsel, we will reinstate the appeal and new counsel will then have thirty days to file a brief unless a motion for extension for good cause is filed and granted by this Court pursuant to the Rules of Appellate Procedure.
PER CURIAM
Before Chief Justice Gray,
Justice Davis, and
Justice Scoggins
Appeal abated
Order issued and filed July 27, 2011
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