Nunez v. State , 1978 Tex. Crim. App. LEXIS 1138 ( 1978 )

OPINION

ROBERTS, Judge.

This is an appeal from a conviction of burglary of a habitation where the trial was before the court on a plea of guilty. The court assessed punishment at eighteen (18) years confinement in thé Department of Corrections. The sufficiency of the evidence is not challenged by appellant.

Appellant’s sole complaint on appeal is that “the trial court erred in denying appellant’s motion to withdraw plea of guilty and in denying the appellant’s motion for a new trial.”

On August 18, 1976, appellant entered a plea of guilty to the offense of burglary of a habitation alleged to have occurred on or about January 10, 1976, in Harris County. The record reflects that appellant was admonished pursuant to Art. 26.13, Vernon’s Ann.C.C.P. Additionally, appellant waived his right to trial by jury in writing pursuant to Arts. 1.13 and 1.14, Vernon’s Ann.C. C.P. Appellant also consented in writing, in open court, to waive the appearance, confrontation, cross-examination of witnesses and further consented to an oral stipulation of evidence of the burglary of a habitation. The waiver was approved by the court in writing and was filed with the papers of the cause as provided by Art. 1.15, Vernon’s Ann.C.C.P. In addition to the aforementioned waivers, appellant’s written stipulation of evidence judicially confessing to the offense of burglary of a habitation was admitted in evidence.

The record reflects that at the conclusion of the proceeding the trial court found appellant guilty and asked the State and counsel for appellant if there had been any plea bargain entered into in this matter. The State responded that the State had no recommendation and that appellant’s counsel would like to have a pre-sentence investigation on appellant. The court then recessed the hearing in order that a pre-sen-tence investigation could be prepared prior to an assessment of the punishment in this case.

On September 1, 1976, the proceedings in this cause were continued in order that punishment could be assessed against appellant. Appellant’s counsel called Tom Wells, a probation officer in Harris County who conducted the pre-sentence investigation of appellant, in order to have him testify as to the probation office’s recommendation in this case. Wells stated that the report indicated that the probation office’s recommendation to the court was that the maximum sentence allowed under the law be assessed appellant. In addition, the pre-sentence investigation was introduced into evidence in its totality.

Appellant then filed a motion to withdraw his plea of guilty on the grounds that the State in this cause had violated a plea agreement since the agreement was that there would be no recommendation by the prosecutor in this case and that appellant was induced to enter the plea of guilty on the basis of the statement that there would be no recommendation as to the punishment in this cause. The trial court listened to the argument of counsel concerning appellant’s motion and after stating that he must take into consideration the full range of punishment, the court denied appellant’s motion. Appellant’s counsel then offered testimony from an employee of Cenikor Corporation, a drug abuse rehabilitation program, that the program would accept Nunez for treatment if he was placed on probation.

It is appellant’s contention that the State of Texas violated the plea agreement with appellant by making a recommendation as to punishment through the pre-sentence investigative report requested by appellant since that report contained a recommendation that the trial court assess the maximum sentence under the law.

Prior to sentencing, appellant’s motion for new trial which urged the same allegation contained in appellant’s motion to withdraw his plea of guilty was overruled by the court. At the sentencing hearing the following colloquy took place:

“THE COURT: All right, so the matter was submitted to the Court — that is the question of punishment and the parties were allowed to examine the report and the examination conducted by the probation department. Now, what took place after that other than the assessment of punishment.

“MR. PEMBERTON:¹ Aside from the witness’s testimony that’s all.

“THE COURT: Well, did the State violate any agreement?

“MR. PEMBERTON: The prosecutor did not.

“THE COURT: And if so why?

“MR. PEMBERTON: The prosecutor himself made no recommendation.

“THE COURT: That’s right.

“MR. PEMBERTON: But the probation officer is employed by the State.

“THE COURT: Is that all you have got to say?

“MR. PEMBERTON: Yes sir.”

Consequently, as the record reflects, the prosecutor in this cause did not violate any plea bargaining agreement made with appellant’s counsel, since the agreement apparently was that the district attorney’s office would make no recommendation and no recommendation as to what punishment was made. The assumption made by appellant that a probation officer is an agent of the prosecution is invalid. Probation officers are assigned or designated by the courts. See Art. 42.12, Sec. 2(d), Vernon’s Ann.C.C.P. The district attorney’s office does not employ a probation officer nor do they have any authority over the probation officers.

The record reflects that prior to sentencing appellant testified that he believed that he would be placed in the Cenikor program if Cenikor would accept him; however, upon further examination appellant admitted that he understood the full range of punishment could be assessed and he knew that he could be sent to the penitentiary but thought that the judge would not do it and that the real basis for the motion for new trial in this cause was that the probation officer had made a recommendation for the maximum sentence to be imposed. Regardless of appellant’s belief, the record reflects that the court in this cause substantially complied with Art. 26.13, supra, when appellant entered his plea of guilty. Appellant’s contention that a plea bargain was violated by the recommendation contained in the presentence investigation requested by appellant is totally without merit. We also note that the punishment assessed by the court was not the maximum imposed by law as recommended by the probation office, but rather, was substantially below the maximum term of years. It is clear that the punishment assessed by the trial court came within the range of punishment established by law, and a penalty imposed within that range prescribed by the legislature will not be disturbed on appeal. Ransonnette v. State, 522 S.W.2d 509 (Tex.Cr.App.1975); Jones v. State, 504 S.W.2d 906 (Tex.Cr.App. 1974); Herrera v. State, 513 S.W.2d 71 (Tex.Cr.App.1974). We find no evidence that appellant’s plea in this cause was coerced or obtained in violation of appellant’s statutory or constitutional rights.

Appellant’s sole ground of error is overruled.

The judgment is affirmed.

1 . Appellant’s counsel.