Broderick Dewayne Thomas v. State ( 2006 )

MARY'S OPINION HEADING

                                                NO. 12-05-00141-CR

IN THE COURT OF APPEALS

TWELFTH COURT OF APPEALS DISTRICT

TYLER, TEXAS

BRODERICK DEWAYNE THOMAS,        §                      APPEAL FROM THE 124TH

APPELLANT

V.        §                      JUDICIAL DISTRICT COURT OF

THE STATE OF TEXAS,

APPELLEE   §                      GREGG COUNTY, TEXAS

MEMORANDUM OPINION

            Appellant pleaded guilty to the offense of possession of a controlled substance (codeine). After admonishing Appellant at length about the consequences of his plea and upon being told by both Appellant’s counsel and the prosecutor that there was no plea agreement, the trial court accepted Appellant’s plea of guilty.  Following a hearing on sentencing, the trial court sentenced Appellant to imprisonment for four years.  Appellant now contends that the State breached a plea agreement not to oppose deferred adjudication.

            Appellant urges two issues on appeal.  First, he contends that because of the State’s breach of a plea bargain agreement, his plea of guilty was not made voluntarily or intelligently.  In his second issue, he maintains that the State’s breach of a plea bargain agreement that induced his plea of guilty implicates a category one right of the defendant, which cannot be waived or forfeited.  We affirm.

Background

            In the course of admonishing Appellant regarding the effect of his plea of guilty and before accepting Appellant’s plea, the trial court inquired as to the existence of a plea agreement as required by statute.  See Tex. Code Crim. Proc. Ann. art. 26.13(a)(2) (Vernon Supp. 2005).  The following colloquy ensued:

THE COURT:                      Is there any type of a plea bargain agreement in this matter?

[THE PROSECUTOR]:      No, Your Honor.

THE COURT:                      Okay. Now, what that means is this, Mr. Thomas: At the conclusion of the evidence, I’m going to ask the lawyers what they think I should do.  I’m going to listen to them.  I’m going to listen to both of them.

But the bottom line is this: I don’t have to follow their recommendations.  I sometimes do; I sometimes don’t.  And because there is no plea bargain involved in this matter, if I choose not to follow the recommendation, you don’t get to withdraw your guilty plea.

                                                                Do you understand that?

THE DEFENDANT:            Yes, sir.

THE COURT:                      And do you want to continue with this plea on the understanding that there is no plea bargain and that I may not follow the recommendations?

THE DEFENDANT:            I understand, sir.

            On the day of the plea hearing, Appellant signed and filed his application for probation. During the sentencing hearing, Appellant testified that he had never been in trouble before his arrest for the instant offense.  He had made better than average grades at Longview High School where he ran track and played football.  He told the judge that he knew he could abide by the terms of probation if he was placed on community supervision and that he knew what that entailed.  However, he admitted that he had smoked marijuana from one to four times a month for the six months following his arrest for this offense.  He also admitted that he had been arrested in Conroe for possession of marijuana (4.6 ounces) a month and a half earlier, ten days before his presentence interview in this case.  He did not mention the Conroe arrest when asked during his presentence interview if he had been arrested anywhere other than Gregg County.

             Appellant’s girlfriend and his father also testified that he was a suitable candidate for probation.

            The State called Holly Booth, the Gregg County probation officer who prepared Appellant’s presentence report.  She indicated that she found Appellant “less than forthcoming” in his interview because he had failed to mention the Conroe arrest.  She made no recommendation regarding probation.

            Appellant’s attorney asked the court to grant Appellant deferred adjudication.  The prosecutor responded that prior to seeing the presentence report, she was not opposed to deferred adjudication, but that she was aware of the trial court’s unfavorable view of defendants who continue to commit crimes while out on bond.  She then told the court that “the State is not opposed to regular probation.”

            The trial court sharply rebuked Appellant telling him that probation was not an option because of his repeated offenses while awaiting trial.  The trial court then sentenced him to four years of imprisonment.

            Appellant’s counsel never alluded to a plea agreement during the plea hearing.  Appellant’s motion for new trial complained only that the verdict “is contrary to the law and the evidence.”  No hearing was sought, and the motion was denied as a matter of law.

Was There a Plea Bargain?

            In his first issue, Appellant contends that his plea must be considered involuntary, because the State breached a plea agreement with Appellant not to oppose deferred adjudication at the sentencing hearing.

Applicable Law

            It is a defendant’s right to have the State honor a plea bargain entered into by the defendant in exchange for a guilty plea, after the judge has accepted the plea bargain in open court.  Bitterman v. State, 180 S.W.3d 139, 141 (Tex. Crim. App. 2005).  “When the prosecution breaches its promise with respect to an executed plea agreement, the defendant pleads guilty on a false premise, and hence his conviction cannot stand.”  Id. at 141-42.  If the State does not fulfill its part of the bargain, the defendant’s plea is considered involuntary.  Id. at 142.

            In his brief, Appellant’s counsel states that before the guilty plea and sentencing, he engaged in extensive plea negotiations with the prosecutor, who told him that the trial court did not accept agreed recommendations as a plea bargain.  He states that, nevertheless, she agreed that, in this case, she would not oppose deferred adjudication.  Although Appellant’s insistence in his brief that there was a plea bargain contradicts the record, Appellant asks that we infer an agreement from the following remark in the prosecutor’s closing argument:

Judge, prior to the PSI, I was not opposed to deferred adjudication.  I know how this Court feels, however, with regard to committing new offenses while out on bond and committing new offenses, even if you’re not arrested, while out on bond.

Appellant acknowledges that the prosecutor “then stated unequivocally that she was not opposed to ‘regular’ probation.”

            The State contends there was no plea bargain, pointing out that the only indication that there was an agreement comes by way of his attorney’s first person statement in his brief. The State argues that statement contradicts the record and Appellant’s factual assertions outside the record may not be considered on appeal.  In support of its position, the State cites Janecka v. State, 937 S.W.2d 456, 476 (Tex. Crim. App. 1996).  The State maintains the quoted passage taken from the prosecutor’s closing argument may provide a glimpse into her thought process but does not establish a plea agreement.

            We agree with the State. We decline to infer the existence of a plea bargain from the prosecutor’s lone ambiguous remark against an obstinate record abounding in unequivocal evidence to the contrary. When asked by the court if there was a plea agreement, both Appellant’s counsel and the prosecutor told the judge there was no agreement.  The court went on to explain to Appellant that “because there is no plea bargain involved in this matter, if I choose not to follow the recommendation [of counsel for the State or Appellant], you don’t get to withdraw your guilty plea.  Do you understand that?”  Appellant responded, “Yes, sir.”  The trial court’s certification of defendant’s right of appeal, signed by Appellant’s counsel and the prosecutor, states that there was not a plea agreement in this case. Appellant did not move for a new trial based on the State’s breach of a plea agreement. There was no plea bargain. Appellant’s first issue is without merit and is overruled.

Disposition

            Because of our disposition of Appellant’s first issue, we need not address his remaining issue.

The judgment is affirmed.

                                                                                                    BILL BASS   

                                                                                                            Justice

Opinion delivered June 30, 2006.

Panel consisted of Worthen, C.J., Griffith, J., and Bass, Retired Justice, Twelfth Court of Appeals, Tyler, sitting by assignment.

(DO NOT PUBLISH)