Moses Martinez v. State ( 1994 )

IN THE COURT OF APPEALS, THIRD DISTRICT OF TEXAS,

AT AUSTIN









NO. 3-94-200-CR





MOSES MARTINEZ,

APPELLANT

vs.





THE STATE OF TEXAS,

APPELLEE

FROM THE DISTRICT COURT OF BELL COUNTY, 264TH JUDICIAL DISTRICT

NO. 43,448, HONORABLE JACK W. PRESCOTT, JUDGE PRESIDING

PER CURIAM

After accepting appellant's guilty plea and judicial confession, the district court found him guilty of felony driving while intoxicated. Act of May 27, 1983, 68th Leg. R.S., ch. 303, § 3, 1983 Tex. Gen. Laws 1568, 1574 (Tex. Rev. Civ. Stat. Ann. art. 6701l-1(b), (e), since amended and codified at Tex. Penal Code Ann. §§ 49.06, 49.09). The court assessed punishment, enhanced by a previous felony conviction, at imprisonment for ten years.

In his only point of error, appellant contends he is entitled to a new trial because the district court assessed punishment on the assumption that appellant is eligible for shock probation. In fact, appellant is not eligible for shock probation because he has been previously imprisoned for a felony offense. Tex. Code Crim. Proc. Ann. art. 42.12, § 6(a)(2) (West Supp. 1994). Appellant urges that because the court assessed punishment on this incorrect assumption, he should be allowed to withdraw his plea.

Appellant relies on the opinion in Ex parte Rogers, 629 S.W.2d 741 (Tex. Crim. App. 1982). In that case, the defendant pleaded guilty pursuant to a plea bargain agreement that included a grant of shock probation. The trial court, however, did not grant shock probation within the time allowed by the statute. The Court of Criminal Appeals held that because the plea bargain was not kept and specific enforcement was impossible, the defendant's plea was involuntary and he was entitled to a new trial.

Appellant did not plead guilty pursuant to a plea bargain. Because his guilty plea was not conditioned on a promise of shock probation, his ineligibility for such probation does not render the plea involuntary. Furthermore, the record does not support appellant's assertion that the district court believed appellant was eligible for shock probation when it assessed punishment. After imposing sentence, the court stated that "[t]he court may consider at an appropriate time if you are eligible possibility [sic] of a shock probation. There's no guarantee or recommendation of that, but I may give some consideration to that if you're eligible upon proper application at the appropriate time." It is obvious from these remarks that the district court neither believed appellant to be eligible for shock probation when it assessed punishment nor promised appellant that he would receive shock probation. The point of error is overruled.

The judgment of conviction is affirmed.

Before Chief Justice Carroll, Justices Jones and Kidd;

Chief Justice Carroll Not Participating

Affirmed

Filed: October 12, 1994

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