Gutierrez v. State

¶1dissenting.

¶2I respectfully dissent. The issue in this case is whether a defendant has a right to withdraw a plea of true to a motion to revoke community supervision when the trial court rejects the plea agreement. The majority holds that a defendant does have the right to withdraw a plea of true under these circumstances. I disagree for two reasons. First, there is no statutory authority giving a defendant the right to withdraw a plea of true. Second, appellant entered his plea of true voluntarily.

¶3I. FACTS

¶4Appellant earlier plead guilty to a felony and was fined and sentenced to ten years imprisonment probated for ten years. The state filed a motion to revoke the probated sentence and agreed with the appellant that if he plead “true” to the allegations, the state would recommend to the court that his probation be revoked and he be sentenced to three years confinement. Among the papers executed at the hearing were a written admonishment by the court and statements by the defendant stating he understood the admonishments given and a waiver of his rights. In both documents concerning the warnings were multiple statements to the effect that recommendations by the state’s attorney were merely recommendations and were not binding on the court, and that the defendant may not withdraw his plea of true if the court did not follow the recommendation. The admonishment document explicitly said that there is no plea bargaining in revocation proceedings and that the defendant will not be allowed to withdraw his plea of true if the recommendation is not followed.

¶5The court did not follow the recommendation of the state as to sentencing, and sentenced the appellant to a longer term of years. No complaint was made to the trial court that he failed to follow the recommendation and no motion for new trial or rehearing was filed alleging error on that basis.

¶6I. VOLUNTARINESS OF THE PLEA OF TRUE

¶7A defendant must knowingly and voluntarily enter a plea of true at a revocation hearing. LeBlanc v. State, 768 S.W.2d *368881, 882 (Tex.App.-Beaumont 1989, no pet.). See Franco v. State, 552 S.W.2d 142, 143-44 (Tex.Crim.App.1977). To assess a plea’s voluntary nature we must ask whether “the plea represents a voluntary and intelligent choice among the alternative courses of action open to the defendant.” Parke v. Raley, 506 U.S. 20, 29, 113 S.Ct. 517, 121 L.Ed.2d 391 (1992); Alvear v. State, 25 S.W.3d 241, 244 (Tex.App.-San Antonio 2000, no pet.). We consider the totality of the circumstances to answer this question. Alvear, 25 S.W.3d at 244. Once an accused attests that he understands the nature of his plea and that it was voluntary he has a heavy burden to prove on appeal that his plea was involuntary. Marshall v. State, 28 S.W.3d 634, 639 (Tex.App.-Corpus Christi 2000, no pet.); Crawford v. State, 890 S.W.2d 941, 944 (Tex.App.-San Antonio 1994, no pet.).

¶8Here, the record includes a multi-page document that contains the following: (1) Court’s Written Admonishments to Defendant; (2) Defendant’s Statement Understanding Admonishments; and (3) Defendant’s Waiver of Rights. The written admonishments included the following declarations:

No Plea Bargaining. There is no plea bargaining in revocation or adjudication proceedings. If you entered a plea of guilty/nolo contendere pursuant to a plea bargain agreement, that plea bargain agreement does not carry forward to revocation or adjudication proceedings. Therefore, if your plea of true is based on an agreement with the State that the State make a specific recommendation on punishment but the Court does not follow that recommendation, you will not be allowed to withdraw your plea of true.

Comt Not Bound by Recommendations. In deciding whether to continue you on supervision or to revoke your supervision, or in assessing your punishment, the Court may consider any recommendations made by the State or your attorney, but the Court is not bound or obligated to accept or follow any recommendation so made.

If Supervision Revoked. If the Court revokes your supervision and the Court had previously found you guilty, the Court may impose the original sentence previously suspended, even though your lawyer and the State’s attorney recommended a lesser or reduced sentence for you.... In other words, the Court may set whatever punishment the Court feels is appropriate in your case regardless of the recommendation of counsel.

¶9The Defendant’s Statement Understanding Admonishments, included the following declarations:

I have personally read the documents required for this hearing.1

I enter my plea of true voluntarily and without force, threats, persuasion, fear or promise. I enter my plea of true only because I have violated those conditions of community supervision for which I have entered a plea of true.

I understand that there is no plea bargaining in revocation or adjudication proceedings. I also understand that if the State has agreed with my lawyer and me to make a specific recommendation on punishment, the Court is free to not follow any such recommendation, and that if the Court chooses to not follow the State’s recommendation or my lawyer’s recommendation, I have no right to withdraw my plea of true or to even ask the Court to allow me to withdraw my plea of true.

*369I also understand that in assessing punishment the Court may consider recommendations made by the District Attorney or my attorney, that the Court is not bound or obligated to accept or follow any recommendations so made, and that the Court will consider the evidence and then assess whatever punishment the Court feels is proper if my community supervision is revoked, regardless of any recommendations made. I further understand that, even if my lawyer and the State’s attorney recommend a lesser or reduced sentence, the Court is free to assess the original sentence previously suspended if I have been found guilty, or to assess any term up to the maximum if the adjudication of guilt in my case was previously deferred.

¶10Appellant signed this statement and the waiver of rights. Defense counsel, the State’s attorney, and the trial judge signed the multi-page document.

¶11During the plea hearing the trial judge asked appellant (1) if he had read the multi-page document himself, (2) if he understood everything contained in the document, (3) if he freely and voluntarily signed the document, (4) if he understood the punishment he faced if supervision was revoked, and (5) if he was aware that by signing the document he was giving up valuable and important rights. Appellant answered affirmatively to each question.

¶12After a careful examination of the totality of the circumstances surrounding the plea I find that the record shows that appellant received and understood the admonishments, that his plea represented a voluntary and intelligent choice, and that he understood the consequences of his plea. See Parke, 506 U.S. at 29, 113 S.Ct. 517; Alvear, 25 S.W.3d at 244. A plea is not involuntary merely because the sentence exceeded what appellant expected, even if the expectation was raised by his attorney. West v. State, 702 S.W.2d 629, 633 (Tex.Crim.App.1986); Russell v. State, 711 S.W.2d 114, 116 (Tex.App.-Houston [14th Dist.] 1986, pet. refd). See Gomez v. State, 921 S.W.2d 329, 332 (Tex.App.-Corpus Christi 1996, no pet.) (plea not involuntary solely because accused pleaded guilty out of desire to limit possible penalty).

¶13II. APPLICABILITY OF ARTICLE 26.13

¶14Article 26.13(a)(2) of the Texas Code of Criminal Procedure provides:

(a) Prior to accepting a plea of guilty or a plea of nolo contendere, the court shall admonish the defendant of:

⅜ ⅝{ ⅝ ⅝

(2) the fact that the recommendation of the prosecuting attorney as to punishment is not binding on the court. Provided that the court shall inquire as to the existence of any plea bargaining agreements between the state and the defendant and, in the event that such an agreement exists, the court shall inform the defendant whether it will follow or reject such agreement in open court and before any finding on the plea. Should the court reject any such agreement, the defendant shall be permitted to withdraw his plea of guilty or nolo contende-re;

¶15TEX. CODE CRIM. PROC. ANN. art. 26.13(a)(2) (Vernon Supp.2001) (emphasis added). Thus the language of article 26.13(a)(2) clearly shows that the Legislature intended this statute to apply only to pleas of guilty and nolo contendere. Had the Legislature intended article 26.13(a)(2) to apply to pleas of true in the context revocation proceedings it could have said so in the statute.

¶16Accordingly a defendant in a revocation proceeding does not have an absolute right to withdraw a plea of true when as in this *370case the trial court fails to follow a plea-bargain recommendation. While this right is afforded to defendants in the context of guilty pleas and pleas of nolo contendere, see TEX. CODE CRIM. PROC. ANN. art. 26.13(a)(2) (Vernon Supp.2001), that right does not exist in a probation revocation proceeding. Accord Harris v. State, 505 S.W.2d 576, 578 (Tex.Crim.App.1974); Rylander v. State, 970 S.W.2d 174, 174 (Tex. App.-Fort Worth 1998, no pet.) (per curiam); Lanum v. State, 952 S.W.2d 36, 39 (Tex.App.-San Antonio 1997, no pet.); Lindsey v. State, 902 S.W.2d 9, 12 (Tex.App.-Corpus Christi 1995, no pet.).

¶17The right to withdraw such a plea only exists in narrow circumstances not present in this case. Cf. Crawford v. State, 624 S.W.2d 906, 909 (Tex.Crim.App.1981); LeBlanc v. State, 768 S.W.2d 881, 882 (Tex. App.-Beaumont 1989, no pet.). Those circumstances are (1) when the plea of true is made in reliance upon an agreement ratified by the trial court, see Crawford, 624 S.W.2d at 909, or (2) when the plea of true is involuntary, see LeBlanc, 768 S.W.2d at 882. Neither of those circumstances are present in this case.

¶18In Crawford the trial court denied the defendant’s motion to suppress. After-wards the defendant pleaded true to the motion to revoke on condition that he be allowed to appeal the ruling on the motion to suppress. However it was later determined that the ruling on the motion to suppress could not be raised on appeal. Thus the defendant argued that his plea of true was not knowingly and voluntarily entered. Quoting language from Wooten v. State, 612 S.W.2d 561 (Tex.Crim.App.1981) and Mooney v. State, 615 S.W.2d 776 (Tex.Crim.App.1981) the court of criminal appeals stated, “a guilty plea cannot be said to have been voluntary if it was induced by an agreement approved by the court that a question could be appealed when that agreement could not be fulfilled.” Crawford, 624 S.W.2d at 909 (quoting Wooten, 612 S.W.2d at 563 and Mooney, 615 S.W.2d at 778). Although Mooneyinvolved a conviction after a nolo plea, the Crawford court found this rule applicable to a revocation of probation after a plea of true. Crawford, 624 S.W.2d at 909.

¶19In this case the trial court did not indicate to appellant that he had any right that was later denied him. Further the trial court did not ratify any agreement upon which appellant’s plea of true was based. On the contrary the trial court took affirmative steps to ensure that appellant understood that the court was not obligated to follow the sentencing recommendation.

¶20The other circumstance, not present in this case, in which a probationer would be entitled to withdraw a plea of true is when the plea was involuntary. See LeBlanc, 768 S.W.2d at 882. As previously discussed appellant entered his plea knowingly and voluntarily. Accordingly I do not find that appellant’s trial counsel was ineffective for failing to request the court to allow appellant to withdraw his plea of true. I would affirm the trial court’s judgment.

¶21Justice ERRLINDA CASTILLO joins in this dissent.