Wesley Troy Shields v. The State of Texas--Appeal from 184th District Court of Harris County

Opinion filed December 21, 2005

In The

Eleventh Court of Appeals

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   Nos. 11-05-00048-CR, 11-05-00049-CR, and 11-05-00050-CR

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   WESLEY TROY SHIELDS, Appellant

V.

STATE OF TEXAS, Appellee

On Appeal from the 184th District Court

Harris County, Texas

Trial Court Cause Nos. 964421, 964422, and 964423

O P I N I O N

Wesley Troy Shields entered pleas of guilty to the offenses of indecency with his nine-year-old cousin,[1] indecency with his eight-year-old cousin,[2] and aggravated sexual assault of his four-year-old cousin.[3] In each case, the parties agreed that all of the sentences would run concurrently and that there would be a cap on the punishment in the aggravated sexual assault offense of twenty-five years. The trial court admonished appellant both in writing and in open court pursuant to Tex. Code Crim. Pro. Ann. art. 26.13 (Vernon Supp. 2005). The trial court convicted appellant of all three offenses and assessed his punishment at confinement for ten years for each indecency offense and confinement for twelve years for the aggravated sexual assault offense. We modify and affirm.

Agreement as to Punishment

Each judgment states that appellant=s guilty plea was an Aopen@ plea or a plea in which no plea bargain agreement had been reached. However, the record reflects that there were agreements between the State, appellant, and appellant=s counsel that the sentences would run concurrently and that the punishment assessed for the aggravated sexual assault would not exceed twenty-five years. These agreements constituted plea bargain agreements. See Shankle v. State, 119 S.W.3d 808, 813 (Tex. Crim. App. 2003); Ditto v. State, 988 S.W.2d 236, 238 (Tex. Crim. App. 1999). The trial court followed these agreements when it assessed punishment in each case. Therefore, the judgments will be modified to reflect that plea bargain agreements were entered.

Effect of the Plea Bargain Agreements on the Scope of These Appeals

Because plea bargain agreements were entered and followed by the trial court, appellant is limited to challenging issues raised in written motions and ruled on prior to trial unless the trial court has granted permission to appeal. Tex. Code Crim. Pro. Ann. art. 44.02 (Vernon 1979) and Tex. R. App. P. 25.2(a)(2). The record before this court does not reflect that the trial court granted permission to appeal.

Certifications of Defendant=s Right to Appeal

At the September 28, 2004, hearing, appellant entered his pleas of guilty. The trial court found that there was sufficient evidence of guilt but postponed making any findings until after the presentence investigation reports (PSIs) were prepared. On September 28, 2004, the trial court signed certifications of the defendant=s right to appeal stating that the defendant had waived his right to appeal. On December 2, 2004, the trial court heard testimony, reviewed the PSIs, found appellant guilty of each offense, assessed punishment, and imposed the sentences in open court. Appellant filed his notices of appeal on December 10, 2004. Also on December 10, 2004, the trial court signed certifications of defendant=s right to appeal stating that these were not plea bargain agreement cases and that appellant had the right to appeal. In neither the September 28 certifications nor the December 10 certifications did the trial court give appellant permission to appeal.

Arguments

Appellant raises three points of error. First, he contends that the trial court failed to properly admonish him in open court. In his second and third points, appellant argues that the trial court violated his state and federal constitutional rights when the trial court convicted him of each offense and assessed sentences of confinement rather than deferring the adjudication of his guilt and placing him on community supervision in each case.

None of these points were raised in written motions and ruled on prior to trial. Therefore, these points are not properly before this court. Moreover, we note that the record does not support any of appellant=s contentions. The points are overruled.

Conclusion

Each judgment of the trial court is modified to reflect a plea bargain agreement that the sentences would run concurrently and that the punishment would be capped at twenty-five years in Trial Court Cause No. 964423. As modified, the judgments of the trial court are affirmed.

PER CURIAM

December 21, 2005

Do not publish. See Tex. R. App. P. 47.2(b).

Panel consists of: Wright, C.J., and

McCall, J., and Strange, J.

[1]Cause No. 11-05-00048-CR

[2]Cause No. 11-05-00049-CR

[3]Cause No. 11-05-00050-CR