Trevino v. State , 1983 Tex. App. LEXIS 4433 ( 1983 )

OPINION

BISSETT, Justice.

This is an appeal from a conviction for the offense of robbery. Appellant was indicted for aggravated robbery, with two prior felony convictions alleged for enhancement. Pursuant to a plea agreement, appellant waived a jury, agreed to stipulate testimony and entered a plea of guilty. The State also waived one enhancement count. The trial court accepted this bargain, but found the evidence sufficient only as to the lesser included offense of robbery and the remaining enhancement count; the court therefore entered a finding of guilt as to the offense of robbery, enhanced by one prior felony conviction. Judgment was rendered with punishment assessed at 25 years’ imprisonment. Sentence was pronounced on December 15, 1978, in accordance with the judgment, at confinement in the Texas Department of Corrections for a term of not less than five (5) nor more than twenty-five (25) years. Appellant properly perfected appeal to the Court of Criminal Appeals.

In a per curiam opinion, dated December 12, 1979, the Court of Criminal Appeals affirmed appellant’s conviction. Appellant’s counsel on appeal filed a motion for rehearing, which was also denied in a per curiam opinion, dated February 6, 1980. However, this same per curiam opinion took note of, and resolved, appellant’s simultaneous collateral attack upon the underlying conviction used for enhancement. Concluding the indictment in that case to be defective, and the conviction therefore void, the Court of Criminal Appeals further concluded that the use of this void conviction for enhancement purposes was error. However, since the error only related to punishment, and since the punishment had been assessed by the trial court, the Court of Criminal Appeals affirmed the judgment of conviction, set aside the punishment, and remanded the cause to the trial court to assess punishment for a felony of the second degree as provided for at V.T.C.A., Penal Code, § 29.02(b) (1974).

Pursuant to this remand, the trial court conducted a hearing regarding punishment. Appellant’s counsel and counsel for the State presented an agreement to the court whereby the State recommended assessment of punishment at ten years confinement in the Texas Department of Corrections. The court refused to accept this agreement, and appellant requested permission to withdraw his plea of guilty. This motion was overruled. The trial court then assessed punishment at confinement in the Texas Department of Corrections for a term of not less than two (2) nor more than sixteen (16) years. Appellant gave timely notice of appeal.

Appellant, through counsel, brings forth one ground of error. In it, he contends that the trial court erred in failing to permit appellant to withdraw his plea of guilty upon being informed by the trial court that it would not accept the prosecution’s recommendation for sentencing previously agreed to by the parties.

On April 7, 1983, this Court certified the following question to the Court of Criminal Appeals:

“In a plea bargain case which has been remanded to the trial court by the Court of Criminal Appeals for the reassessment of punishment only, does the defendant have a statutory or constitutional right to withdraw his plea of guilty if the trial court does not follow a new punishment recommendation agreed to between the State and the defendant?”

By Per Curiam opinion delivered on April 20, 1983, 655 S.W.2d 209, the Court of Criminal Appeals refused to answer the certified question on the ground that it did not have any constitutional or statutory authority to consider such question, and, therefor was without jurisdiction in the matter.

Since punishment was originally assessed by the trial court, the Court of Criminal Appeals remanded for purposes of assessment of punishment only. Bullard v. State, 533 S.W.2d 812 (Tex.Cr.App.1976), and Tyra v. State, 534 S.W.2d 695 (Tex.Cr.App.1976). This result is not inconsistent with Cooper v. State, 631 S.W.2d 508 (Tex.Cr.App.1982) since the State made no attempt to prove up the enhancement allegation at the second punishment hearing. Accordingly, we hold that appellant had no right to withdraw his plea of guilty following the trial court’s refusal to follow the prosecution’s recommendation for sentencing on remand.

Appellant, in a supplemental pro se brief, contends that the trial court erred by considering the evidence concerning the enhancement conviction, voided by the Court of Criminal Appeals, when it assessed punishment after remand. The trial court is presumed to have disregarded any inadmissible evidence when reaching its decision on sentencing. Moton v. State, 540 S.W.2d 715 (Tex.Cr.App.1976); Davison v. State, 510 S.W.2d 316 (Tex.Cr.App.1974); and Holland v. State, 481 S.W.2d 410 (Tex.Cr.App.1972). The sentence of sixteen (16) years is within the permissible range of punishment for a second degree felony. V.T.C.A. Penal Code, § 12.33 (1974).

Under the record the conviction of appellant is final and this Court does not have the power to reverse the conviction which has been affirmed by the Court of Criminal Appeals. We are unable to find any authority whereby we can reverse and remand the case to the trial court with instructions of any kind or character. In that state of affairs, we have no choice but to affirm the judgment of the trial court, even though by doing so we may have denied the appellant due process of law.

We have considered both of appellant’s grounds of error and overrule the same. The judgment of the trial court is AFFIRMED.