Enrique Samaniego v. State ( 1998 )

No. 04-97-00155-CR

Enrique SAMANIEGO

,

Appellant

v.

The STATE of Texas

,

Appellee

From the 63rd Judicial District Court, Val Verde County, Texas

Trial Court No. 7962

Honorable George M. Thurmond, Judge Presiding

Opinion by: Karen Angelini, Justice

Sitting: Tom Rickhoff, Justice

Sarah B. Duncan, Justice

Karen Angelini, Justice

Delivered and Filed: July 31, 1998

AFFIRMED

Nature of the Case

Enrique Samaniego pled guilty to the felony offense of driving while intoxicated. Pursuant to a plea bargain, the court assessed punishment at six years confinement and suspended imposition of the sentence. The court placed Samaniego on community supervision for six years and ordered participation in a felony substance abuse program. The court also ordered Samaniego to serve 180 days in jail as a condition of community service. In his first issue on appeal, Samaniego argues that the evidence was insufficient to support his guilty plea. In the second issue, Samaniego alleges that his guilty plea was not entered knowingly and with sufficient awareness of the relevant circumstances and likely consequences.

Argument

In order to appeal from a guilty plea for a nonjurisdictional defect, the notice of appeal must specify that the trial court granted permission to appeal or specify that the matter was raised by a written pre-trial motion. Tex. R. App. P. 40(b)1.⁽¹⁾ Because Samaniego filed only a general notice of appeal, we have no jurisdiction to consider whether sufficient evidence existed to support the guilty plea. We dismiss Samaniego's first issue for want of jurisdiction.

However, we may address Samaniego's claim that his plea was not entered knowingly. See Flowers v. State, 935 S.W.2d 131, 134 (Tex. Crim. App. 1996) (voluntariness of guilty plea can be addressed through general notice of appeal). Samaniego alleges that his plea of guilty was not a knowing, intelligent act done with sufficient awareness of the relevant circumstances and likely consequences. Samaniego signed a document entitled "Agreed Punishment Recommendation" which stated that it was agreed and recommended to the Court by the State and the defendant that punishment would be assessed at six years confinement. The sentence would be suspended and Samaniego would be placed on community supervision and would be confined for felony substance abuse treatment. Special conditions such as shock probation, confinement in the county jail, and restitution were listed at the bottom of the document. However, none of these conditions were checked off for Samaniego.

At the plea hearing, the judge advised Samaniego of his rights. The court found that Samaniego freely and voluntarily entered his plea of guilty. The court found Samaniego guilty and assessed the agreed punishment. As a condition of community supervision, the court required Samaniego to serve 180 days in the county jail. Samaniego argues that the jail time was not a part of the plea agreement and the court failed to discover the extent of the plea and accept it or reject it.

Jail time is a condition of community supervision authorized by article 42.12 of the Code of Criminal Procedure. Tex. Code Crim. Proc. Ann. art 42.12 § 12(a) (Vernon Supp. 1998). A defendant convicted of felony DWI must serve at least 10 days of confinement in the county jail as a condition of community supervision. Id. § 13(a)(1). Because the documents Samaniego signed did not explicitly state "no jail time" and the court otherwise has authority to set conditions of community supervision, the court did not fail to discover the extent of the plea bargain. See Fielder v. State, 834 S.W.2d 509, 511 (Tex. App.--Fort Worth 1992, pet. ref'd). The court accepted the plea bargain and imposed the authorized condition of jail time.

Samaniego argues that his case is similar to the Fielder case. Fielder, 834 S.W.2d at 509. In Fielder, after jail time was imposed as a condition of community supervision, the defendant immediately stated that jail time was not her understanding of the plea bargain. Id. at 510. A motion to reconsider the sentence or to withdraw the plea was filed. At the hearing on this motion, the defendant testified that she would not have entered the plea if she had known she could have gotten jail time. Id. at 512. The prosecutor even testified that the understanding was that the defendant would not receive jail time. Id. at 513. The court found that the plea was involuntary because the defendant had no notice that jail time was a consequence of her plea bargain. Id. at 514-15.

In this case, there is no evidence in the record that Samaniego was unaware of the consequence of receiving jail time as a condition of community supervision. Further, the record does not show that had Samaniego known he could receive jail time, he would not have pled guilty. Thus, no evidence exists to show that his plea was not entered knowingly. We overrule Samaniego's second issue.

We affirm the judgment.

Karen Angelini, Justice DO NOT PUBLISH

1. Because the notice of appeal was filed prior to September 1, 1997, the former rule 40(b)(1) applies. The current Rule of Appellate Procedure applicable to notices of appeal from plea bargains is Rule 25.2(b)3.

---

Return to
4th Court of Appeals Opinions