Robert Marlin Hocutt, Jr. v. the State of Texas

NOS. 12-21-00154-CR
12-21-00155-CR

IN THE COURT OF APPEALS

TWELFTH COURT OF APPEALS DISTRICT

TYLER, TEXAS

ROBERT MARLIN HOCUTT, JR., § APPEALS FROM THE 392ND
APPELLANT

V. § JUDICIAL DISTRICT COURT

THE STATE OF TEXAS,
APPELLEE § HENDERSON COUNTY, TEXAS

MEMORANDUM OPINION
PER CURIAM
Robert Marlin Hocutt, Jr. appeals his convictions for burglary of a habitation and
aggravated robbery. Appellant’s counsel filed a brief in compliance with Anders v. California,
386 U.S. 738, 87 S. Ct. 1396, 18 L. Ed. 2d 493 (1967) and Gainous v. State, 436 S.W.2d 137 (Tex.
Crim. App. 1969). 1

BACKGROUND
Appellant was charged by indictments with burglary of a habitation and aggravated
robbery. 2 Appellant pleaded “guilty” to both charges. Although the blank indicating an “open
plea” is checked on both of the agreed plea recommendations, the appellate records indicate that
(1) in the burglary case, there was a plea-bargain agreement that the burglary case would run

1
In compliance with Kelly v. State, Appellant’s counsel provided Appellant with a copy of the brief, notified
Appellant of his motion to withdraw as counsel, informed Appellant of his right to file a pro se response, and took
concrete measures to facilitate Appellant’s review of the appellate record. See Kelly v. State, 436 S.W.3d 313, 319
(Tex. Crim. App. 2014). Appellant was given time to file his own brief. The time for filing a pro se brief has expired,
and no pro se brief has been filed.
2
See TEX. PENAL CODE ANN. §§ 29.03, 30.02(c)(2) (West 2019).
concurrently to the aggravated robbery case and no fine would be imposed and (2) in the
aggravated robbery case, Appellant’s maximum punishment exposure would be twenty-five years
of confinement. 3 After conducting a sentencing hearing, the trial court assessed punishment at
twenty years of confinement in each case, and the trial court ordered that the sentences would run
concurrently. These appeals followed.

JURISDICTION
In a plea-bargain case, a defendant may appeal only (1) those matters that were raised by
written motion filed and ruled on before trial, (2) after receiving the trial court’s permission to
appeal, or (3) when the specific appeal is expressly authorized by statute. TEX. R. APP. P.
25.2(a)(2). An appeal must be dismissed unless a certification that shows the defendant has the
right of appeal has been made part of the record. TEX. R. APP. P. 25.2(d). If a court of appeals
examines a certification after the appellate record is filed, it must review the record to determine
whether the certification is defective before dismissing the appeal for lack of jurisdiction. Dears
v. State, 154 S.W.3d 610, 615 (Tex. Crim. App. 2005).

DISPOSITION
The trial court’s certifications state that these are plea-bargain cases and Appellant waived
his right of appeal. The certifications are signed by Appellant and his trial counsel. As discussed
above, the records in both cases indicate the existence of a plea-bargain agreement as contemplated
by Rule 25.2(a)(2) of the Texas Rules of Appellate Procedure. See TEX. R. APP. P. 25.2(a)(2); see
also Shankle v. State, 119 S.W.3d 808, 813 (Tex. Crim. App. 2003). We conclude that the records
in both cases support the trial court’s certifications. See Dears, 154 S.W.3d at 615. Therefore, this
Court does not have jurisdiction of the appeals, and the appeals must be dismissed. See TEX. R.
APP. P. 25.2(d).
As required by Anders and Stafford v. State, 813 S.W.2d 503, 511 (Tex. Crim. App. 1991),
Appellant’s counsel has moved for leave to withdraw in both cases. See also In re Schulman, 252
S.W.3d 403, 407 (Tex. Crim. App. 2008) (orig. proceeding). We carried the motion for

3
In the burglary of a habitation case, the judgment recites that the terms of the plea-bargain agreement
included (1) a fine would not be imposed and (2) the case would run concurrently with the aggravated robbery case.
In the aggravated robbery case, the agreed plea recommendation states that the parties agreed to limit Appellant’s
punishment exposure to twenty-five years.

2
consideration with the merits. Having concluded that this Court does not have jurisdiction of the
appeals, we grant counsel’s motion for leave to withdraw and dismiss the appeals for want of
jurisdiction.
Appellant’s counsel has a duty to, within five days of the date of this opinion, send a copy
of the opinion and judgment to Appellant and advise him of his right to file a petition for
discretionary review. See TEX. R. APP. P. 48.4; Schulman, 252 S.W.3d at 411 n.35. Should
Appellant wish to seek review of this case by the Texas Court of Criminal Appeals, he must either
retain an attorney to file a petition for discretionary review on his behalf or he must file a pro se
petition for discretionary review. Any petition for discretionary review must be filed within thirty
days from the date of this Court’s judgment or the date the last timely motion for rehearing was
overruled by this Court. See TEX. R. APP. P. 68.2(a). Any petition for discretionary review must
be filed with the Texas Court of Criminal Appeals. See TEX. R. APP. P. 68.3(a). Any petition for
discretionary review should comply with the requirements of Rule 68.4 of the Texas Rules of
Appellate Procedure. See Schulman, 252 S.W.3d at 408 n.22; see also TEX. R. APP. P. 68.4.
Opinion delivered June 30. 2022.
Panel consisted of Worthen, C.J., Hoyle, J., and Neeley, J.

(DO NOT PUBLISH)

3
COURT OF APPEALS

TWELFTH COURT OF APPEALS DISTRICT OF TEXAS

JUDGMENT

JUNE 30, 2022

NO. 12-21-00154-CR

ROBERT MARLIN HOCUTT, JR.,
Appellant
V.
THE STATE OF TEXAS,
Appellee

Appeal from the 392nd District Court
of Henderson County, Texas (Tr.Ct.No. CR19-0423-392)

THIS CAUSE came to be heard on the appellate record and brief filed herein;
and the same being considered, it is the opinion of this court that this court is without jurisdiction
of the appeal, and that the appeal should be dismissed.
It is therefore ORDERED, ADJUDGED and DECREED by this court that this
appeal be, and the same is, hereby dismissed for want of jurisdiction; and that this decision be
certified to the court below for observance.
By per curiam opinion.
Panel consisted of Worthen, C.J., Hoyle, J. and Neeley, J.
COURT OF APPEALS

TWELFTH COURT OF APPEALS DISTRICT OF TEXAS

JUDGMENT

JUNE, 2022

NO. 12-21-00155-CR

ROBERT MARLIN HOCUTT, JR.,
Appellant
V.
THE STATE OF TEXAS,
Appellee

Appeal from the 392nd District Court
of Henderson County, Texas (Tr.Ct.No. CR20-0713-392)

THIS CAUSE came to be heard on the appellate record and brief filed herein;
and the same being considered, it is the opinion of this court that this court is without jurisdiction
of the appeal, and that the appeal should be dismissed.
It is therefore ORDERED, ADJUDGED and DECREED by this court that this
appeal be, and the same is, hereby dismissed for want of jurisdiction; and that this decision be
certified to the court below for observance.
By per curiam opinion.
Panel consisted of Worthen, C.J., Hoyle, J. and Neeley, J.