GUADALUPE GUERRA v. THE STATE OF TEXAS--Appeal from 332nd District Court of Hidalgo County

   NUMBER 13-04-328-CR

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

  CORPUS CHRISTI  B EDINBURG

GUADALUPE GUERRA, Appellant,

v.

THE STATE OF TEXAS, Appellee.

 On appeal from the 332nd District Court

of Hidalgo County, Texas.

M E M O R A N D U M O P I N I O N

 Before Chief Justice Valdez and Justices Hinojosa and Rodriguez

   Opinion by Chief Justice Valdez

Appellant, Guadalupe Guerra, was found guilty of violating several conditions of his community supervision and sentenced to ten years= imprisonment. On appeal, appellant raises two issues: (1) prosecutorial vindictiveness, and (2) the trial court erred in denying appellant=s affirmative defense of inability to pay his probationary fees. We affirm the judgment of the trial court.

BACKGROUND

On November 14, 2002, appellant was charged with two counts of deadly conduct in cause number CR-2657-02-F. Appellant pleaded guilty to one count of deadly conduct, with the second count dismissed as part of his plea bargain with the State. Appellant was granted deferred adjudication and placed on community supervision for eight years.

On March 12, 2003, the State filed a motion for adjudication of guilt alleging that appellant had violated terms and conditions of his deferred adjudication. Appellant allegedly (1) committed a capital murder on or about September 5, 2002, (2) failed to show proof of driver=s license or insurance on or about January 28, 2003, (3) failed to pay his supervisory fee, (4) failed to pay court costs, (5) failed to pay his fine, (6) failed to perform 240 hours of community service, and (7) failed to pay his court-appointed counsel. The indictment for the capital murder charge followed under cause number CR-0960-03-F.

On March 14, 2003, the court called the hearing for the State=s motion for adjudication of guilt in cause number CR-2657-02-F. Appellant=s attorney and Assistant District Attorney Steven Schammel allegedly negotiated a plea bargain whereby appellant would serve three years in jail. Schammel did not submit such a plea to the court. Instead, the State filed a motion to dismiss its motion to adjudicate guilt. Appellant remained in jail awaiting trial on the charges set forth in cause number CR-0960-03-F.

On March 29, 2004, the State re-filed the motion to adjudicate guilt in cause number CR-2657-02-F alleging that appellant had violated terms and conditions of his deferred adjudication. Appellant allegedly failed to (1) pay his supervisory fee, (2) pay his court costs, (3) pay his fine, (4) perform 240 hours of community service, and (5) pay his court-appointed counsel.

On April 8, 2004, the court heard the motion for adjudication of guilt. Appellant was sentenced to ten years= imprisonment; however, he did not receive credit for the time he had already spent in jail.

On April 12, 2004, the State dismissed the indictment in cause number CR-0960-03-F.

On May 10, 2005, appellant filed a motion for new trial in cause number CR-2657-02-F in which he accused the government of prosecutorial vindictiveness and retaliation, as well as violating his rights to a speedy trial, protection against double jeopardy, and due process. The motion was denied, and this appeal followed.

I. Prosecutorial Vindictiveness

By his first issue, appellant contends that the prosecutor was guilty of prosecutorial vindictiveness. Appellant accuses the prosecutor of being vindictive when he allegedly (a) plea bargained for three years on a motion for adjudication of guilt; (b) dismissed that same motion prior to presenting the plea to the court, and a year later re-filed the motion for adjudication when the appellant exercised his constitutional right to a jury trial in a separate case, thereby causing the appellant to receive the maximum punishment of ten years from the court; and (c) denied the year=s credit that appellant would have otherwise been entitled to had the first motion for adjudication of guilt not been dismissed.

A district court=s factual findings of prosecutorial vindictiveness are reviewed for clear error and the legal principles which guide the district court are reviewed de novo. See United States v. Johnson, 91 F.3d 695, 698 (5th Cir. 1996) (evaluating whether the state of Texas and federal government=s simultaneous prosecutions were vindictive).

A constitutional claim of prosecutorial vindictiveness may be established in two distinct ways: (1) proof of circumstances that pose a Arealistic likelihood@ of such misconduct sufficient to raise a Apresumption of prosecutorial vindictiveness,@ which the State must rebut or face dismissal of the charges; or (2) proof of Aactual vindictiveness@B that is, direct evidence that the prosecutors=s charging decision is an unjustifiable penalty resulting solely from the defendant=s exercise of a protected right. Neal v. State, 150 S.W.3d 169, 173 (Tex. Crim. App. 2004).

A. Plea-Bargain

Appellant contends that he and Prosecutor Schammel initially negotiated a plea bargain whereby appellant would serve three years in jail. A plea bargain agreement is a bilateral, not unilateral, contract. Ramirez v. State, 89 S.W.3d 222, 226 (Tex. App.BCorpus Christi 2002, no pet.). A plea bargain is not Aentered into@ until the trial court accepts the plea agreement. Wilson v. State, 689 S.W.2d 311, 314 (Tex. App.BFort Worth 1985, pet. ref=d).

In the instant case, Schammel provided appellant with the necessary paperwork for the plea agreement, which appellant and Schammel both signed and notarized. However, Schammel did not submit the completed agreement to the court for its acceptance. Appellant=s allusion that Schammel reneged on their plea bargain agreement is unfounded. No acceptance by the trial court occurred here; therefore, neither the State nor appellant was ever bound by any plea agreement. See Wilson, 689 S.W.2d at 314. Thus, we conclude that the State was under no obligation to re-offer appellant a three year plea bargain that never existed.

B. Dismissal and Subsequent Re-filing of Motion to Adjudicate Guilt

Appellant also contends that the prosecutor was vindictive because he dismissed the original motion for adjudication of guilt and then re-filed it one year later, allegedly in retaliation for appellant=s exercising of his constitutional right to a jury trial in a separate case. In his motion for new trial, appellant argues that the dismissal and re-filing of the motion to adjudicate guilt raises a double jeopardy issue.

Only the court in which the defendant was tried may grant community supervision, impose conditions, revoke the community supervision, or discharge the defendant. See Tex. Code Crim. Proc. Ann. art. ' 10(a) (Vernon 2005). Whether under the Texas or United States Constitution, it is elemental that the criterion which triggers double jeopardy is the risk of multiple prosecutions or punishments for the same offense. Ex parte Broxton, 888 S.W.2d 23, 25 (Tex. Crim. App. 1994). Unlike a criminal proceeding, guilt or innocence is not at issue during a probation revocation hearing. State v. Nash, 817 S.W.2d 837, 840 (Tex. App.BAmarillo 1991, pet. ref'd). Rather, what is at issue is whether the defendant has committed an act which effectively broke the contract he or she made with the court pursuant to granting probation. Id. The result is not a conviction, but a finding on which the trial court can then exercise its discretion by revoking or continuing probation. Id. (citing Davenport v. State, 574 S.W.2d 73, 75 (Tex. Crim. App. 1978)). Accordingly, double jeopardy does not apply to a proceeding in which the result is neither a conviction nor an acquittal. See id. Double jeopardy therefore does not exist in this case.

With regard to whether the State erred in dismissing and then re-filing the motion to adjudicate guilt, the record shows that the State dismissed the motion to adjudicate guilt before the court heard any testimony or evidence regarding said motion. Although the State filed a motion to revoke appellant=s probation on March 12, 2003, no plea was taken, no evidence was heard, and no hearing was held. Because no formal hearings were held, the State was free to re-file the motion to revoke and to allege some or all of the offenses it had alleged previously, with or without the allegation of a new violation. See Winkle v. State, 718 S.W.2d 306, 308 (Tex. App.BDallas 1986, no pet.).

C. Credit for Time Served

Appellant further alleges that the prosecutor was vindictive in denying him credit for the year he had already spent in jail. It is well-settled that an individual is entitled to credit for the time he has spent in jail Ain said cause.@ See Tex. Code Crim. Proc. Ann. art. 42.03, ' 2 (Vernon Supp. 2004-05); Ex parte Hernandez, 845 S.W.2d 913, 914 (Tex. Crim. App. 1993) (per curiam). Here, however, the time appellant spent in jail was not related to the charge currently being appealed but rather was accrued while appellant was awaiting trial for a separate crime. Accordingly, this argument fails.

There is no evidence of prosecutorial vindictiveness in this case. We overrule appellant=s first issue.

II. Affirmative Defense of Inability to Pay Probationary Fees

By his second issue, appellant contends that the trial court erred in denying his affirmative defense of inability to pay his probationary fees. Before deciding the merits of this issue, however, we must first determine whether we have jurisdiction to hear appellant=s argument.

Inability to make court ordered payments is an affirmative defense to revocation of community supervision. Tex. Code Crim. Proc. Ann. art. 42.12, ' 21(c) (Vernon Supp. 2004 05). When evidence that the probationer is unable to pay fees, court costs, fines, or restitution is not refuted by the State and the trial court revokes probation, it is an abuse of discretion. Quisenberry v. State, 88 S.W.3d 745, 749 (Tex. App.BWaco 2002, pet. ref'd).

Article 42.12, section 5(b) of the code of criminal procedure provides that no appeal may be taken from a trial court's determination to proceed with the adjudication of guilt. Tex. Code Crim. Proc. Ann. art. 42.12, ' 5(b); see Connolly v. State, 983 S.W.2d 738, 741 (Tex. Crim. App. 1999); Olowosuko v. State, 826 S.W.2d 940, 942 (Tex. Crim. App. 1992). Therefore, although we would have jurisdiction to address the issue of appellant=s affirmative defense of inability to pay probationary fees if this were an appeal from the revocation of ordinary community supervision (which is imposed following adjudication), as in Quisenberry, we have no jurisdiction to address it in the context of an appeal from adjudication of guilt. We overrule appellant=s second issue.

CONCLUSION

The judgment of the trial court is affirmed.

Rogelio Valdez,

Chief Justice

Do not publish.

Tex. R. App. P.47.2(b).

Memorandum Opinion delivered and filed

this 3rd day of November, 2005.