Julio De Los Santos v. State of Texas ( 2001 )

In The

Court of Appeals

Ninth District of Texas at Beaumont

____________________

NO. 09-01-213 CR ____________________

JULIO DELOSSANTOS, Appellant

V.

THE STATE OF TEXAS, Appellee

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On Appeal from the Criminal District Court Jefferson County, Texas Trial Cause No. 82181

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OPINION  

Julio Delossantos ⁽¹⁾ pleaded guilty to the second degree felony offense of possession of a controlled substance, cocaine, in an amount of at least four (4) grams or more and less than two hundred (200) grams. Tex. Health & Safety Code Ann. § 481.115 (a),(d) (Vernon Supp. 2001). A plea bargain agreement was filed with the trial court. The trial court accepted the plea, convicted Delossantos, and imposed a sentence of five (5) years of incarceration in the Texas Department of Criminal Justice, Institutional Division. Delossantos filed a general notice of appeal. The sole issue presented on appeal contends, "Reversible error occurred when the trial court failed to permit appellant to withdraw his plea after failing to follow a plea bargain agreement."

If an appeal is from a judgment rendered on the defendant's plea of guilty under Article 1.15 of the Texas Code of Criminal Procedure, and the punishment assessed by the trial court does not exceed the punishment recommended by the prosecutor and agreed to by the defendant, the notice of appeal must either specify that the appeal is for a jurisdictional defect, specify that the substance of the appeal was raised by written motion and ruled on before trial, or state that the trial court granted permission to appeal. Tex. R. App. P. 25.2(b)(3). Failure to comply with the rule deprives the appellate court of jurisdiction, even to consider whether the plea was knowingly and voluntarily entered. Cooper v. State, 45 S.W.3d 77 (Tex. Crim. App. 2001). Since Delossantos filed a general notice of appeal, which does not reflect that the trial court granted permission to appeal, and he pleaded guilty pursuant to a plea bargain agreement, appellate jurisdiction will lie only if the trial court exceeded the punishment agreed upon by Delossantos and the State.

The written plea bargain agreement between Delossantos and the State provided, "The defendant's punishment will not exceed a cap of 5 years in the Institutional Division." During the plea proceeding, the judge correctly recited the prosecution's agreement that "in no event should the prison term exceed 5 years," and acknowledged that the defendant was "asking for deferred probation." The judge accepted the plea and deferred further proceedings for preparation of the presentence investigation report. During the sentencing proceeding, the trial court stated, "Tell him that I find him guilty and that he's sentence to 10 years in the Texas prison system." Defense counsel promptly informed the court that there was a five year cap on the case. The trial court responded, "Tell him that I overlooked the agreement with the District Attorney that y'all made. That it's changed to 5 years, not 10 years." The sentencing hearing concluded without further motion or objection. Delossantos did not file a motion for new trial.

On appeal, Delossantos argues that the trial court erred in rejecting the plea bargain agreement without affording the accused the opportunity to withdraw his plea, and that the trial court's action in changing the sentence from 10 years to 5 years was tantamount to the granting of a new trial as to punishment only. Neither argument is supported by the record. The situation here present is distinguishable from instances in which the sentence is pronounced, accepted by the defendant, and imposed by the court, then altered by the judge. See State v. Dickerson, 864 S.W.2d 761, 763 (Tex. App.--Houston [1st Dist.] 1993, no pet.); Tooke v. State, 642 S.W.2d 514 (Tex. App.--Houston [14th Dist.] 1982, no pet.). In this case, there was no "new" trial granted; the trial had not concluded when the plea bargain agreement was brought to the attention of the trial court. Delossantos did not accept the sentence; defense counsel objected. Thus, the sentence imposed upon the appellant was for five years of incarceration, not ten.   

Delossantos relies upon a case out of this Court, Papillion v. State, 908 S.W.2d 621, 623 (Tex. App.--Beaumont 1995, no pet.). No jurisdictional issue arose in Papillion because the trial court exceeded the plea bargain agreement in that case. ⁽²⁾    

We hold that the trial court followed the terms of the plea bargain agreement between Delossantos and the State. Accordingly, Rule 25.2(b)(3) applies to this appeal. The appeal is dismissed for lack of jurisdiction.

APPEAL DISMISSED.

PER CURIAM

Submitted on December 12, 2001

Opinion Delivered December 19, 2001

Do Not Publish

Before Walker, C.J., Burgess and Gaultney, JJ.

1. We refer to the appellant's name as it appears in the indictment.

In the plea memoranda, the appellant signed as "Julio De los Santos."

2.

Id. at 624. Papillion is distinguishable from this case in two other respects. In Papillion, a motion for new trial was filed. Id. at 623. Delossantos waived any error that may have occurred because he neither sought to withdraw his plea, nor did he file a motion for new trial. Second, any error in failing to announce whether the court would accept the plea bargain agreement cannot be reversible error if the error is harmless. See Garcia v. State, 960 S.W.2d 151, 155 (Tex. App.--Corpus Christi 1997, no pet.). In Papillion, the judge imposed an eight year sentence when the parties had negotiated a six year sentence. Id. at 624. Here, the judge followed the terms of the plea bargain agreement.