Jose Robert Perez v. State ( 2016 )

In The
Court of Appeals
Seventh District of Texas at Amarillo
No. 07-15-00320-CR
JOSE ROBERT PEREZ, APPELLANT
V.
THE STATE OF TEXAS, APPELLEE
On Appeal from the 64th District Court
Castro County, Texas
Trial Court No. A3091-0606, Honorable Robert W. Kinkaid, Jr., Presiding
June 30, 2016
MEMORANDUM OPINION
Before QUINN, C.J., and CAMPBELL and HANCOCK, JJ.
Appellant, Jose Perez, entered a plea of guilty, pursuant to a plea agreement, to
the offense of indecency with a child.1 Pursuant to the plea agreement, appellant was
placed on deferred adjudication community supervision for a period of ten years on
February 22, 2007. Subsequently, on November 20, 2014, the State filed a motion to
adjudicate appellant guilty. The trial court conducted a hearing on the motion to
adjudicate on June 25, 2015. After receiving appellant’s plea of true, the trial court
1
See TEX. PENAL CODE ANN. § 21.11(a)(1) (West 2011).
adjudicated appellant guilty. Thereafter, the trial court heard the punishment evidence
and sentenced appellant to ten years in the Institutional Division of the Texas
Department of Criminal Justice (ID-TDCJ). Appellant filed a motion for new trial. After a
hearing on the motion for new trial, the trial court overruled the same. This appeal
followed.
Appellant brings a single issue which contains a number of different sub-issues.2
Appellant contends that the trial court abused its discretion in the following particulars:
(1) by refusing to honor the plea-bargained agreement that allegedly existed between
appellant and the State; (2) by refusing a continuance request; and (3) by denying
appellant’s motion for new trial. We disagree with appellant and will affirm.
Factual and Procedural Background
The facts of this case do not appear to be in dispute and only those relevant to
our opinion will be recounted. No one contends that the State and appellant had not
reached an agreement regarding disposition of the motion to proceed with adjudication
previously filed by the State. Under the terms of the agreement, appellant was to
complete a new sex-offender evaluation and then successfully complete any counseling
sessions required by the evaluation. Further, appellant was to complete an additional
40 hours of community supervision. According to the record, this agreement was
reached on June 24, 2015, the day before the hearing on the motion to adjudicate. The
trial court refused to sign off on the agreement and, instead, conducted a hearing on the
State’s motion to adjudicate.
2
While we could declare that appellant’s issue is multifarious and treat it accordingly, we will
address the individual issues contained within appellant’s single issue.
2
Appellant persisted in entering his plea of true to allegations of violations
contained in paragraphs 2A and 2B of the motion to proceed. After being admonished
by the trial court, appellant entered his pleas of true. The trial court subsequently
accepted the pleas of true to paragraphs 2A and 2B and not true to paragraphs 1 and 3
of the motion to proceed.
Thereafter, the trial court heard the evidence regarding the motion to proceed.
After hearing the evidence, the trial court found that the allegations that appellant had
violated conditions 2A, 2B, and 3 to be true. The trial court adjudicated appellant guilty
of the offense of indecency with a child and proceeded to the question of punishment.
After conducting the punishment hearing, the trial court assessed appellant’s
punishment at ten years’ incarceration in the ID-TDCJ. Appellant has appealed,
contending that the trial court abused its discretion in a number of particulars. We will
affirm.
Standard of Review
Appellant contends that each of the matters addressed in its brief require that a
reviewing court use an abuse of discretion standard of review. To the extent that
appellant may appeal the refusal of a trial court to enter an agreed order, if the record
demonstrates that the trial court had, in fact, accepted the plea agreement, the
appellant would be entitled to specific performance of the plea agreement. See Wright
v. State, 158 S.W.3d 590, 594 (Tex. App.—San Antonio 2005, pet. ref’d).
As to appellant’s contention regarding error for improperly refusing the request
for a continuance, the issue is governed by the abuse of discretion standard of review.
3
See Gonzales v. State, 304 S.W.3d 838, 843-44 (Tex. Crim. App. 2010). The same is
true for an appeal from the denial of a motion for new trial. See Holden v. State, 201
S.W.3d 761, 763 (Tex. Crim. App. 2006).
Analysis of Refusal to Enter Plea Agreement
In reviewing the record before the Court, we note that, during the admonishments
given by the trial court, prior to accepting appellant’s plea of true to allegations 2A and
2B and plea of not true to allegations 1 and 3, the trial court discussed the plea
agreement entered into between appellant and the State. Specifically, the trial court
admonished appellant that “this Court is not bound by any agreement or any
recommendations as to the result of this proceeding made and entered into between
you, your attorney[,] and the State’s attorney.” The trial court then asked appellant if he
understood the admonishments and whether appellant had any questions about
anything. Appellant responded, “No, sir, not at this time.” The trial court then asked
appellant if it was still his desire to plead true to the allegations 2A and 2B. Appellant
answered, “Yes, sir.”
Thus, it is apparent from the record that appellant entered his plea of true to the
allegations in paragraphs 2A and 2B with the knowledge that the trial court would not be
bound by any plea agreement between appellant and the State. A trial court’s decision
to accept or reject a plea bargain belongs to the trial judge alone. See Gaal v. State,
332 S.W.3d 448, 457 (Tex. Crim. App. 2011) (citing Morano v. State, 572 S.W.2d 550,
551 (Tex. Crim. App. [Panel Op.] 1978)).
4
Appellant seems to contend that, since he is already on deferred adjudication
community supervision, he is not trying to bind the trial court to a specific punishment by
requiring it to accept the proposed plea agreement. As appellant’s theory goes, this
would be so because the plea agreement simply continues him on deferred
adjudication. Appellant cites the aforementioned Morano case for the proposition that
the State and defendant have no authority to bind the trial court to a fixed punishment in
support of his theory that they are not trying to bind the trial court to a particular
punishment. See Morano, 572 S.W.2d at 550–51. What appellant’s analysis overlooks
is the procedural aspect of his situation. There was pending an application to
adjudicate appellant guilty and the proposed plea bargain struck at the very essence of
the procedure without the trial court’s consent, i.e., the adjudication of appellant as
guilty of the underlying offense. Thus, a closer reading of the Morano opinion belies
appellant’s position. The appellant in Morano espoused the theory that, since article
26.13 of the Texas Code of Criminal Procedure sanctions plea bargains, the Texas
Court of Criminal Appeals should hold all defendants charged with felonies have an
absolute right to enter into plea bargains. See id. The Morano court answered that
argument by pointing out that such a position is not sound because to allow such an
argument would be to sanction an attendant argument that every defendant must enter
a plea of guilty and enter into a plea bargain. Id. As the court explained, a trial court
may refuse to allow plea bargaining and the trial court may refuse to allow a prosecutor
to offer recommendations concerning the punishment to be assessed. Id. The
defendant does not have an absolute right to enter into a plea bargain. Id.
5
Appellant then cites the Court to Wright v. State, 158 S.W.3d 590, 595 (Tex.
App.—San Antonio 2005, pet. ref’d), for the proposition that there are limits to the trial
court’s discretion to accept or reject a plea bargain. The Wright opinion did, in fact,
state there were limits in that particular case because of the facts. The original trial
judge accepted the plea bargain and stated it would follow the bargain; however, the
trial judge that heard the punishment evidence refused to follow the plea bargain. See
id. at 594. Under these facts, the Fourth Court of Appeals held that the second trial
judge did not have the authority to sua sponte reject the plea bargain. See id. The
facts involved in Wright are significantly different than those we see before us and,
accordingly, Wright has no binding authority on the issue before us.
Appellant next contends that appellant and the State should have the authority to
bind the trial court to a continuation of a prior court-approved agreement. The prior
court-approved agreement at issue was appellant’s deferred adjudication community
supervision. Appellant cites the Court to no cases that support this beginning
proposition, and, we hasten to add, we have found none. Appellant’s contention is only
a variation of the contention addressed above and is controlled by the same legal
principal, that is, the decision to accept or reject a plea bargain belongs to the trial court.
See Gaal, 332 S.W.3d at 457. Because we have so found, we need not address
appellant’s related argument of detrimental reliance. Appellant could not have relied on
the plea bargain to his detriment when the trial court advised appellant before he
entered his plea of true that the trial court was not bound to accept a plea bargain.
At the end of the day, when we review the facts before us and the applicable law,
it is clear to the Court that the trial court properly advised appellant of its intent not to be
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bound by the plea bargain. Yet, the record supports the proposition that appellant went
ahead and entered his plea of true to two of the allegations pending. Accordingly, the
trial court did not err in refusing to follow the plea bargain. Appellant’s contention to the
contrary is overruled.
Motion for Continuance
Appellant’s next contention is that the trial court erred by not granting appellant’s
motion for continuance, allegedly made at some point before the trial court accepted
appellant’s plea of true. Appellant’s position is based upon the unsworn declaration of
trial counsel that was presented at the hearing on the motion for new trial. The unsworn
declaration was not admitted into evidence at the motion for new trial hearing. It was
included as an offer of proof for appellate purposes. The record of the proceeding on
the motion to adjudicate contains no motion for continuance made by appellant.
Accordingly, nothing is preserved for appeal. See TEX. R. APP. P. 33.1(a)(1).
Even if we were to accept the unsworn statement as proffered at the motion for
new trial hearing, nothing is preserved for appeal. The record reflects that the motion
for continuance to which appellant refers was made by the State because of the
absence of one of their witnesses. The trial court denied the motion by order signed on
June 22, 2015. Appellant’s trial counsel simply agreed to the motion and did not make
any motion for continuance on behalf of the appellant. Again, nothing is preserved for
appeal. See TEX. R. APP. P. 33.1(a)(1).
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Denial of Motion for New Trial
Appellant’s final contention is that the trial court abused its discretion by
overruling appellant’s motion for new trial. The trial court is the finder of fact on a
motion for new trial. See Odelugo v. State, 443 S.W.3d 131, 138 (Tex. Crim. App.
2014). We view the trial court’s ruling on the motion for new trial in the light most
favorable to the trial court’s ruling. See id. A trial court abuses its discretion by denying
a motion for new trial when the trial court’s decision was clearly erroneous and arbitrary.
See id. at 137.
In the case before the Court, appellant contends that the trial court abused its
discretion because the trial court should have followed the plea bargain to continue
appellant on community supervision. Such an argument simply ignores the fact that the
trial court acted within its discretion by not following the plea bargain entered into
between the State and appellant. See Gaal, 332 S.W.3d at 457 (citing Morano, 572
S.W.2d at 551). Since the trial court had the discretion to reject the plea bargain
agreement, it did not abuse its discretion in denying appellant’s motion for new trial.
See Odelugo. 443 S.W.3d at 137. Appellant’s contention to the contrary is overruled.
Conclusion
Having overruled all of appellant’s contentions, we affirm the judgment of the
trial.
Mackey K. Hancock
Justice
Do not publish.
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