Michael Bridger v. The State of Texas--Appeal from 54th District Court of McLennan County

NO. 10-90-019-CR

IN THE

COURT OF APPEALS

FOR THE

TENTH DISTRICT OF TEXAS

AT WACO

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MICHAEL BRIDGER,

Appellant

v.

THE STATE OF TEXAS,

Appellee

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From the 54th Judicial District Court

McLennan County, Texas

Trial Court # 89-1044-C

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O P I N I O N

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Appellant was charged with the felony offense of forgery enhanced by two prior felonies. See Tex. Penal Code Ann. 32.21 (Vernon 1989). He was found guilty by a jury and punishment was assessed at 87 years in prison. We will affirm.

Appellant complains by way of two points that the trial court erred in not compelling the State to proceed in accordance with the terms of a plea bargain offer and that the court erred in denying his motion for a new trial based on the State's withdrawal of the plea bargain agreement. The State had offered 20 years for a plea of guilty. This offer was relayed to Appellant by his attorney. Appellant then requested that his attorney try to get the sentence reduced to 15 years. Appellant's attorney negotiated further with the State, and the State reduced the offer to an 18-year sentence. This information was not relayed to Appellant because, before Appellant's attorney could relay the 18-year offer to him, the State informed his attorney that it was withdrawing the offer.

The general rule is that either party is entitled to modify or even withdraw its consent to the bargain until the plea is tendered and the bargain as it then exists is accepted by the court. United States v. Ocanas, 628 F.2d 353, 358 (5th Cir. 1980). When the parties agree to terms in a plea bargain they in effect become parties to a contract. Ex Parte Williams, 637 S.W.2d 943, 947 (Tex. Crim. App. 1982). However, the contract does not become operative until the court announces it will be bound by the agreement, and at that time both parties are obligated to carry out its side of the bargain. Id. In this case, just as it was in DeRusse v. State, the plea bargain agreement was withdrawn prior to Appellant's plea. See DeRusse v. State, 579 S.W.2d 224, 236 (Tex. Crim. App. 1979). The Appellant was then in no worse position had the plea bargaining not occurred at all.

The court proceeded properly; therefore, we overrule Appellant's points and affirm the judgment of the district court.

BOBBY L. CUMMINGS

Justice

Before Chief Justice Thomas,

Justice Cummings and

Justice Vance

Affirmed

Opinion delivered and filed June 6, 1991

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