Bert Land Reimer v. State ( 2003 )

MEMORANDUM OPINION No. 04-01-00611-CR Bert Land REIMER, Appellant v. The STATE of Texas, Appellee From the 227th Judicial District Court, Bexar County, Texas Trial Court No. 1995-CR-2629 Honorable Philip A. Kazen, Jr., Judge Presiding

Opinion by: Karen Angelini, Justice

Sitting: Sarah B. Duncan, Justice

Karen Angelini, Justice

Sandee Bryan Marion, Justice

Delivered and Filed: June 11, 2003

AFFIRMED

Bert Land Reimer was charged with the offense of aggravated assault with a deadly weapon. Pursuant to a plea-bargain agreement, Reimer entered a plea of guilty and was placed on deferred adjudication community supervision for ten years. Five years later, the State filed a motion to revoke community supervision and enter adjudication of guilt. Reimer entered a plea of not true to both allegations. After hearing the State's motion, the trial court entered an adjudication of guilt, made an affirmative finding of a deadly weapon, and sentenced Reimer to twenty years imprisonment and a fine of $1,000. On appeal, Reimer argues that his federal due process rights were violated because the trial court did not follow the plea-bargain agreement and that he was denied the opportunity to withdraw his plea as required by article 26.13 of the Texas Code of Criminal Procedure. We overrule both issues and affirm the judgment of the trial court.

Reimer argues that the trial court violated his federal due process rights by not following the plea-bargain agreement on adjudication of guilt. Pursuant to the plea-bargain agreement, Reimer agreed (1) to plead guilty to the offense charged, (2) to allow the State to prove its case through written stipulations, (3) to the entry of an order of no contact with the complainant, and (4) to pay restitution as determined by the probation officer. In exchange, the State agreed to recommend that Reimer be placed on deferred adjudication community supervision for ten years.

The trial court followed the plea-bargain agreement by placing Reimer on deferred adjudication community supervision for ten years. Reimer, thus, received the benefit of his bargain when he was placed on deferred adjudication community supervision for ten years. Further, nothing in the record suggests that Reimer and the State entered into a second plea-bargain agreement in relation to Reimer's sentence should he be subsequently adjudicated guilty. As such, once the trial court revoked Reimer's community supervision and adjudicated him guilty, it was not bound by the plea-bargain agreement at all. Von Schounmacher v. State, 5 S.W.3d 221, 223 (Tex. Crim. App. 1999); Ditto v. State, 988 S.W.2d 236, 239-40 (Tex. Crim. App. 1999). The trial court was, therefore, permitted to make an affirmative finding of a deadly weapon. In fact, "once the trial court proceeds to adjudication, it is restricted in the sentence it imposes only by the relevant statutory limits." Von Schounmacher, 5 S.W.3d at 223. Reimer pled guilty to committing aggravated assault with a deadly weapon and was admonished before entry of his plea that the range of punishment for this offense was two to twenty years imprisonment and a fine up to $10,000. The trial court sentenced Reimer to twenty years imprisonment and a fine of $1,000, a sentence within the range of punishment for the offense. We overrule Reimer's first issue.

In his second issue, Reimer argues that although the trial court refused to honor the plea-bargain agreement, Reimer was not given the opportunity to withdraw his plea. Because we have held that the trial court did follow the plea-bargain agreement when it placed Reimer on deferred adjudication community supervision for ten years, we overrule this second issue.

Having overruled all issues, we affirm the judgment of the trial court.

Karen Angelini, Justice

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