Roberts, Pearline W. v. State ( 2013 )

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AFFIRM; Opinion issued January 16, 2013.
In The
QI:ourt of appeal~
jfiftb 11i~id of 'atexa~ at Jlalla~
No. 05-11-01071-CR
PEARLINE W. ROBERTS, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the Criminal District Court No. 3
· Dallas County, Texas
Trial Court Cause No. F10-61237-J
MEMORANDUM OPINION
Before Justices O'Neill, FitzGerald, and Lang-Miers
Opinion by Justice O'Neill
Appellant appeals an order revoking her probation. Appellant pleaded true to the
allegations in the State's motion to revoke in exchange for the State's recommendation of a 180-
day sentence. The trial court did not follow the plea agreement and assessed punishment at two-
years' confmement. In her sole point of error, appellant contends the trial court abused its
discretion in assessing the two-year sentence without first giving her an opportunity to withdraw
her plea, thereby rendering the plea involuntary. For the following reasons, we affirm the trial
court's order.
1
Appellant initially pleaded guilty to possession of a controlled substance. The terms of
the plea agreement required appellant to participate in a Substance Abuse Punishment Facility
Special Needs (SAPF) Program for not less than ninety-days or more than twelve months and
comply with all rules and regulations of the program. Appellant refused to enter the SAPF
program and the State filed a motion to revoke shortly thereafter. Appellant agreed to plead true
to the allegations in the State's motion to revoke if the State would recommend a 180-day·
sentence. At the revocation hearing, the trial court informed appellant the court was not
required to follow the plea agreement. However, the trial court also told appellant she would be
allowed to withdraw her plea if the trial court did not follow the plea agreement.
Appellant then pleaded true to the allegations in the State's motion to revoke. The trial
court did not follow the plea agreement and sentenced appellant to two-years' confmement. In
this appeal, appellant asserts her plea was rendered involuntary when the trial court did not give
her an opportunity to withdraw her plea before sentencing her. It is undisputed that, unlike in a
guilty plea case, a trial court is not required to allow a defendant to withdraw a negotiated plea of
true even if the court does not follow a plea agreement. Gutierrez v. State, 108 S.W.3d 304, 309
(Tex. Crirn. App. 2003). Appellant however contends "once the trial court gave appellant the
right to withdraw her plea, the trial court abused its discretion by refusing this right. making
appellant's plea involuntary."
The State asserts appellant waived error by not requesting the trial court to allow her to
withdraw her plea or otherwise object at the plea hearing or in a motion for new trial. Rule
33.l(a) requires an appellant to raise a timely objection in the trial court as a prerequisite to
raising an error on appeal. An exception exists only for absolute systemic requirements or
nonwaivable rights. Mendez v. State, 138 S.W.3d 334, 350 (Tex. Crirn. App. 2004). Failure to
2
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permit a defendant to withdraw a plea is not such a requirement. See id. Likewise, questions
concerning the voluntariness of a guilty plea do not fall within the definition of such
"fundamental" requirements. Williams v. State, 10 S.W.3d 788, 789 (Tex. App.-Waco 2000,
pet. refd). We conclude appellant waived her complaints relating to the trial court's refusal to
permit her to withdraw her plea by failing to request withdrawal by timely objection or motion
for new trial. We resolve the sole issue against appellant and affirm the trial court's judgment.
Do Not Publish
TEx. R. APP. P. 47
111071F.U05
3
Qrourt of App-eals
lJitfth, ili.strid of wexa.s at ilalla.s
-JUDGMENT
Pearline W. Roberts, Appellant On Appeal from the Criminal District Court
No.3, Dallas County, Texas
No. 05-11-01071-CR V. Trial Court Cause No. Fl0-61237-J.
Opinion delivered by Justice O'Neill.
The State of Texas, Appellee Justices FitzGerald and Lang-Miers
participating.
Based on the Court's opinion of this date, the judgment of the trial court is AFFIRMED.
Judgment entered this 16th day of January, 2013.