¶1concurring.
¶2Appellant was charged by a single-count indictment with the felony offense of aggravated robbery. He agreed to plead guilty to this indictment in exchange for a recommendation from the prosecutor that he be found guilty of robbery, a lesser-ineluded offense. The matter was set for a hearing before the trial judge. Appellant waived reading of the indictment, and was admonished by the judge substantially as required by law. See Code Crim. Proc. art. 26.13(a). In response to questioning, appellant averred that his plea was freely and voluntarily given. See Code Crim. Proc. art. 26.13(b). His lawyer expressed the view that he was mentally competent.
¶3Next, the judge inquired of the prosecuting attorney whether there would be “any recommendation to the Court in connection with these matters other than the reduction to the lesser included.” See Code Crim. Proc. art. 26.13(a)(2). Both the prosecuting attorney and the appellant confirmed that no other recommendations were contemplated by their agreement. The judge then accepted appellant’s plea of guilty and received evidence proving his guilt. Afterwards, he stated that he would make no further decision in the case until a “pre-sentence investigation report” had been prepared.
¶4About a month later, when court was reconvened, the judge announced for the first time that he could not “in good conscience enter any findings as to the lesser included offense.” Accordingly, appellant opted to withdraw his guilty plea, as the law allows. Code Crim. Proc. Art. 26.13(a)(2). Later, the case was reset and appellant entered a plea of nolo contendere without benefit of any plea agreement. The judge then found him guilty of aggravated robbery and sentenced him to confinement in the penitentiary for fifty years.
¶5Appellant maintains that the proceeding in which he was convicted of aggravated robbery was a successive prosecution of the same offense to which he had earlier pled guilty in exchange for.the prosecutor’s agreement to recommend that he be convicted only for the lesser included offense of robbery. He claims that, when the trial judge accepted his guilty plea, he was placed in jeopardy and that termination of that proceeding was tantamount to the declaration of a mistrial. Although he admits that the proceeding was actually terminated by his own decision to withdraw his guilty plea, he argues that he was goaded into that decision by the trial judge’s refusal to implement the prosecutor’s recommendation.
¶6In my opinion, appellant’s argument is based upon several mistaken assumptions. First, he evidently believes that acceptance of his guilty plea by the trial judge was tantamount to acceptance of his plea bargain with the prosecutor. But this is surely wrong. Our law provides that “[p]rior to accepting a plea of guilty or a plea of nolo contendere, the court shall admonish the defendant of [some important consequences which may follow from his plea]” and that “[n]o plea of guilty or nolo contendere shall be accepted by the court unless it appears that the defendant is mentally competent and the plea is free and voluntary.” Code Crim. Proc. art. 26.13(a), (b). Thus, acceptance by the court of a defendant’s guilty plea is legally inhibited only if the plea is not an intelligent act of the defendant’s competent free will. The trial judge need not also agree to ratify the terms of a private agreement between the parties before accepting a guilty plea. At most, he need only state whether he will ratify or reject the bargain.
¶7In the present context, it is reasonably clear that the judge did not mean to express any view about the prosecutor’s recommendation when he accepted appellant’s plea, but that he meant only to declare on the record a finding that appellant’s plea was made competently and voluntarily, with knowledge of *111its potential consequences. Thus, appellant was in no position to enforce specifically his plea agreement with the State, since the law does not require a trial judge to effectuate the recommendation of a prosecutor until he has announced in open court, before any finding on the plea, that he will “follow or reject” such recommendation. Compare Perkins v. Court of Appeals, 738 S.W.2d 276 (Tex.Crim.App.1987). Because nothing like that happened here, it cannot fairly be said that the trial judge ever agreed to follow, or was ever bound to follow, the prosecutor’s recommendation in the first place.
¶8Nevertheless, appellant also seems to contend that a mere plea of guilty to a lesser included offense, once it is accepted by the trial judge, somehow operates as an implied acquittal or dismissal of the charged offense. But the law plainly contemplates that a defendant’s plea be directed to the allegations of the indictment, not to lesser offenses included within those allegations. Code Crim. Proc. art. 26.11. Because the indictment in this cause charged aggravated robbery, appellant’s plea of guilty was necessarily directed to that charge, even if he expected to be convicted instead of some lesser offense pursuant to a plea bargain with the State.
¶9If, therefore, it is appellant’s position on appeal that his guilty plea was directed only to a lesser included offense of the charged offense and that he did not in fact plead to the offense of aggravated robbery, it must also necessarily be his position that he did not plead to the indictment at all. And if he did not plead to the indictment, he was never put in jeopardy under it, since it is well-settled that jeopardy does not attach until the accused has at least entered a plea to the charging instrument. Serfass v. United States, 420 U.S. 377, 95 S.Ct. 1055, 43 L.Ed.2d 265 (1975); State v. Torres, 805 S.W.2d 418 (Tex.Crim.App.1991).
¶10If, on the other hand, it is appellant’s position that he did enter a plea of guilty to the offense of aggravated robbery, then he must concede that the trial judge was authorized to proceed immediately with an adjudication of his guilt for that offense, since a plea bargain cannot bind the judge. The only way he could reasonably expect to avoid that consequence would be to withdraw his guilty plea as authorized by law on account of the trial judge’s refusal to follow the prosecutor’s recommendation. And that is exactly what he did. To claim, as he now does, that the trial judge somehow bullied him into withdrawing his plea, suggests that he was really prepared to be convicted of aggravated robbery without further ado but that the judge, in order to embarrass him with repeated guilty plea hearings, refused to let him proceed. This suggestion is, of course, preposterous. Not only is it implausible on its face, but there is absolutely nothing whatsoever in the record to support it.
¶11The truth is that the proceedings which appellant now claims were successive prosecutions for the same offense were really quite typical of negotiated guilty pleas, except for one odd circumstance. The judge and the parties all preferred to speak of the first proceeding as if it were a plea to the lesser included offense of robbery rather than a bench trial for the charged offense of aggravated robbery. This was a mistake. But it does not alter the fact that, if appellant was placed in jeopardy at all in the first proceeding, it was on his plea of guilty to the offense of aggravated robbery. Because the record does not reflect, nor does appellant claim, that the aggravated robbery indictment was ever actually dismissed, or that the State ever actually agreed to dismiss it, in exchange for his guilty plea, I am satisfied that appellant did in fact plead guilty to, and was therefore put in jeopardy of conviction for, the offense of aggravated robbery.
¶12I am not, however, prepared to accept that his later decision to withdraw that guilty plea terminated his jeopardy for aggravated robbery in such a way as to bar further judicial proceedings in the case. Were we to hold that it did, the result would be that all negotiated guilty pleas under the Code of Criminal Procedure would have adverse jeopardy consequences for the prosecution whenever the trial judge refused to implement the State’s agreed recommendation and the defendant opted to withdraw his plea. But no such result is required under the Constitution of Texas or of the United States because the first plea proceeding did not end with an *112acquittal of appellant for aggravated robbery or with his conviction for robbery, and because such proceeding was actually interrupted at appellant’s request. Moreover, it cannot fairly be said that the judge or prosecutor improperly exerted any pressure on appellant to withdraw his plea. Cf. Oregon v. Kennedy, 456 U.S. 667, 102 S.Ct. 2083, 72 L.Ed.2d 416 (1982). There is nothing in the record to support a conclusion that the trial judge would not have been willing to proceed with an adjudication of appellant’s guilt for the offense of aggravated robbery at any time after his receipt of the presentence report had appellant indicated a desire to proceed with such an adjudication at that time. Consequently, appellant was not successively prosecuted for the same offense in violation of state or federal double jeopardy prohibitions.
¶13For these reasons, I concur in the judgment of the Court.