Bitterman v. State

MEMORANDUM OPINION

FELIPE REYNA, Justice.

Earl Owen Bitterman pleaded guilty to aggravated sexual assault. Pursuant to a plea bargain, the State recommended five years’ confinement but agreed to stand mute on Bitterman’s motion for deferred adjudication community supervision. At sentencing, Bitterman presented evidence in support of his motion. The State responded with evidence that he should be imprisoned and argued that he should be imprisoned. The court sentenced him to five years’ imprisonment.

Bitterman presents two issues in which he claims that: (1) the State breached the parties’ plea agreement; and (2) the court abused its discretion by permitting his motion for new trial to be overruled by operation of law.

BACKGROUND

The State’s punishment recommendation at the hearing in which Bitterman pleaded guilty was as follows:

5 YEARS IN THE TEXAS DEPARTMENT OF CRIMINAL JUSTICE, INSTITUTIONAL DIVISION, AND A FINE OF $0,00; THE STATE NEITHER OPPOSES NOR RECOMMENDS THAT THE COURT GRANT DEFERRED ADJUDICATION PROBATION IN THIS MATTER.

At sentencing, Bitterman presented several witnesses to support his request for deferred adjudication. The State cross-examined these witnesses on Bitterman’s suitability for community supervision and whether he had accepted responsibility for his conduct. The State called the complainant’s counselor in rebuttal. The counselor testified that granting Bitterman’s request for community supervision would send the wrong message to the complainant and would “erode some of her confidence that she was indeed a victim.”

The State argued that Bitterman’s request for deferred adjudication should be denied because: (1) “he has not accepted responsibility for his actions”; (2) he denied committing the offense during the presentence investigation; and (8) granting community supervision would send the wrong message to the complainant. The State concluded by asking the court “to follow the State’s agreement and sentence him to the penitentiary.”

BREACH OF PLEA AGREEMENT

Bitterman argues in his first issue that the State breached the parties’ plea agreement by presenting evidence that he should be imprisoned and by arguing that he should be imprisoned. The State responds that: (1) we do not have jurisdiction to address this issue because it exceeds the scope of the issues identified in Bitterman’s notice of appeal; (2) Bitter-man failed to preserve this issue for our review because he did not raise this complaint in a timely fashion in the trial court; and (3) the State did not breach the parties’ agreement.

Because Bitterman perfected this appeal before the recent amendments to the Rules of Appellate Procedure took effect, the provisions of former appellate rule 25.2(b)(8) apply. Former rule 25.2(b)(3) required a notice of appeal in a plea bargain case to specify which of three types of issues would be presented in the appeal, namely: (1) a jurisdictional defect; (2)an issue raised by written motion and ruled on before trial; or (3) an issue on which the trial court granted permission to appeal. Tex.R.App. P. 25.2(b)(3), 948-949 S.W.2d (Tex.Cases) xcvi (Tex.Crim.App. 1997, amended 2002). The terms of a notice of appeal under Rule 25.2(b)(3) define the scope of the issues which may be presented in such an appeal. See Bayless v. State, 91 S.W.3d 801, 803 n. 2 (Tex.Crim.App.2002); Page v. State, 70 S.W.3d 317, 318 (Tex.App.-Waco 2002, no pet.).

Compliance with former Rule 25.2(b)(3) is not a jurisdictional prerequisite. Bayless, 91 S.W.3d at 803 n. 2. Rather, compliance with the rule determines what issues are cognizable on appeal. Id.

Bitterman’s notice of appeal states in pertinent part that he is appealing an issue which the trial court granted permission to appeal. The trial court signed an order granting permission “to appeal the ruling of this court denying defendant’s motion for new trial.” Bitterman alleged in the motion for new trial that the prosecutor breached the parties’ plea agreement. Accordingly, we conclude that the issue of whether the prosecutor breached the agreement is one on which the trial court granted permission to appeal.

The State next argues that Bitter-man failed to preserve this issue for our review because he did not make a timely objection. “[T]o be timely the objection must be at a time at which the trial court may remedy the [error].” Moore v. State, 999 S.W.2d 385, 397 (Tex.Crim.App.1999); accord Montoya v. State, 43 S.W.3d 568, 572 (Tex.App.-Waco 2001, no pet.).

Bitterman contends that the State breached the plea agreement by the introduction of improper testimony and by improper argument. An objection to the admission of improper evidence should be made at the time the evidence is offered to preserve error. Aguilar v. State, 26 S.W.3d 901, 905-06 (Tex.Crim.App.2000); Gone v. State, 54 S.W.3d 27, 32 (Tex.App.-Texarkana 2001, pet. ref'd). Bitterman did not object to the prosecutor’s offer of evidence which he contends violated the plea agreement until thirty days after the hearing when he filed the motion for new trial. This was untimely. See id.

Similarly, an objection to improper argument should be made at the time of the objectionable argument to preserve error. See Zimmerman v. State, 860 S.W.2d 89, 100 (Tex.Crim.App.1993); Haliburton v. State, 80 S.W.3d 309, 315 (Tex.App.-Fort Worth 2002, no pet.). Again, Bitterman’s objection was untimely because he did not present it until thirty days after the fact.

Bitterman contends that the State breached the plea agreement by the admission of improper evidence and by improper argument. He failed to make a timely objection to either instance of alleged prosecutorial misconduct. Thus, he has failed to preserve this issue for our review. See Guevara v. State, 103 S.W.3d 549, 556-57 (Tex.App.-San Antonio 2003, pet. granted);¹ Williams v. State, 840 S.W.2d 449, 463-64 (Tex.App.-Tyler 1991, pet. refd); contra Besch v. State, 87 S.W.3d 588, 590 n. 3 (Tex.App.-San Antonio 2002, pet. dism’d, untimely filed) (motion for new trial adequately preserved complaint that State breached plea agreement).

Accordingly, we conclude that Bitter-man’s first issue is without merit.

MOTION FOR NEW TRIAL

Bitterman claims in his second issue that the trial court abused its discretion by permitting his motion for new trial to be overruled by operation of law. Bit-terman did not timely raise the grounds for relief on which his motion for new trial was premised. Accordingly, we hold that the court did not abuse its discretion by permitting his motion for new trial to be overruled by operation of law. See Williams, 840 S.W.2d at 463-64. To hold otherwise would be to permit Bitterman to undercut the well-established rules for preservation of error. See Jones v. State, 942 S.W.2d 1, 2 n.l (Tex.Crim.App.1997) (preservation is a systemic requirement which must be considered by intermediate appellate court even if not raised by the parties).

Accordingly, we conclude that Bitter-man’s second issue is without merit.

We affirm the judgment.

Justice BILL VANCE, dissenting.

1 . The Court of Criminal Appeals has granted review in Guevara on three grounds unrelated to the preservation principle for which the case is cited herein. See Guevara v. State, No. 03-0424 (Tex.Crim.App. June 18, 2003 & Oct. 8, 2003) (orders granting State’s & Appellant’s petitions for discretionary review).