Mireles, Joey v. State ( 2002 )

                                  NUMBER 13-00-256-CR

                             COURT OF APPEALS

                   THIRTEENTH DISTRICT OF TEXAS

                                CORPUS CHRISTI

_____________________________________________________________________

JOEY MIRELES,                                                                    Appellant,

                                                   v.

THE STATE OF TEXAS,                                                          Appellee.

____________________________________________________________________

     On appeal from the 105th District Court of Nueces County, Texas.

____________________________________________________________________

                                   O P I N I O N

            Before Chief Justice Valdez and Justices Castillo and Baird ^[1]

                                   Opinion by Justice Baird

A jury convicted appellant of the offense of aggravated sexual assault and assessed punishment at confinement for ten years, probated for ten years and a fine of $6,000.00.  The State later moved to revoke appellant=s community supervision.  Appellant pled true to the allegations in the motion to revoke and the trial court assessed punishment at ten years confinement in the Texas Department of Criminal Justice--Institutional Division.  Appellant raises two points of error.  We reverse.

Appellant was placed on community supervision for a period of ten years.  The State subsequently filed a motion to revoke the community supervision. Appellant and the State entered into a plea bargain agreement whereby appellant agreed to plead true to the allegations in exchange for a recommendation of five years confinement. However, after appellant pled true, the trial judge refused to follow the plea bargain agreement and assessed punishment at ten years confinement.  Appellant subsequently moved, pro se, to withdraw his plea because his sentence exceeded the plea bargain agreement.  On April 24, 2000, the trial court entered an Order Denying Defendant=s Motion for Reconsideration or Reduction of Sentence. Appellant gave notice of appeal.

The first point of error contends appellant=s plea was involuntary because it was conditioned upon a plea bargain which the trial judge did not follow.  We recently considered this issue in Gutierrez v. State, 65 S.W.3d 362 (Tex. App.BCorpus Christi 2001, pet. filed), where the trial judge refused to follow a plea bargain agreement on a motion to revoke community supervision. In Gutierrez, this Court held the right to withdraw a plea of true after the trial court rejects a plea agreement applies to motions to revoke community supervision.  Id. at 365.  There is no principled distinction between the instant case and Gutierrez. Accordingly, the first point of error is sustained.

The judgment of the trial court is reversed and the case is remanded for further proceedings.

CHARLES F. BAIRD

Justice

Dissenting opinion by

Justice Errlinda Castillo

Do not publish. Tex. R. App. P. 47.3.

Opinion delivered and filed this the

18th day of April, 2002.

                                             * * * * * *

                                   NUMBER 13-00-256-CR

                             COURT OF APPEALS

                   THIRTEENTH DISTRICT OF TEXAS

                                CORPUS CHRISTI

JOEY MIRELES,                                                                    Appellant,

                                                   v.

THE STATE OF TEXAS,                                                          Appellee.

                        On appeal from the 105th District Court

                                  of Nueces County, Texas.

                            DISSENTING OPINION

          Before Chief Justice Valdez and Justices Castillo and Baird^[2]

                          Dissenting Opinion by Justice Castillo

I respectfully dissent for the reasons stated in the dissent to Gutierrez v. State, 65 S.W.3d 362, 367-70 (Tex. App.- Corpus Christi 2001, pet. filed) (Dorsey, J. dissenting). 

ERRLINDA CASTILLO

Justice

Do not publish.

Tex. R. App. P. 47.3(b).

Dissenting Opinion delivered and filed

this 18th day of April, 2002.

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^[1]Former Court of Criminal Appeals Judge Charles F. Baird assigned to this Court by the Chief Justice of the Supreme Court of Texas pursuant to Tex.Gov=t Code Ann. ' 74.003 (Vernon 1998).

^[2]Former Court of Criminal Appeals Judge Charles F. Baird assigned to this Court by the Chief Justice of the Supreme Court of Texas pursuant to Tex. Gov=t Code Ann. ' 74.003 (Vernon 1998).