Richard Solis Yanez v. The State of Texas--Appeal from 22nd District Court of Caldwell County

TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN
NO. 03-95-00359-CR
Richard Solis Yanez, Appellant
v.
The State of Texas, Appellee
FROM THE DISTRICT COURT OF CALDWELL COUNTY, 22ND JUDICIAL DISTRICT
NO. 95-032, HONORABLE JACK ROBISON, JUDGE PRESIDING

PER CURIAM

 

Pursuant to a plea bargain agreement, appellant pleaded guilty to an indictment accusing him of driving while intoxicated, third offense. Act of May 27, 1983, 68th Leg. R.S., ch. 303, 3, 1983 Tex. Gen. Laws 1568, 1574 (Tex. Rev. Civ. Stat. Ann. art. 6701l-1(b), (e), since amended and codified at Tex. Penal Code Ann. 49.04, 49.09 (West 1994 & Supp. 1996)). The agreed punishment was imprisonment for two years and a $1000 fine. After admonishing appellant and accepting his plea, the district court ordered the preparation of a presentence report.

When trial resumed one month later, the court announced that it was dissatisfied with the agreed punishment and that it preferred "five years probated with the SAFPF program." Appellant objected that this was not the punishment he agreed to and asked to withdraw his guilty plea. The court denied that request. The court then adjudged appellant guilty and assessed punishment at imprisonment for five years, but suspended imposition of sentence and placed appellant on community supervision. The court also assessed a $1000 fine and announced several special supervisory conditions, including participation in the SAFPF program and use of an ignition interlock.

In five points of error, appellant contends his guilty plea was involuntary under the circumstances and that the district court erred by refusing to permit him to withdraw it. The State concedes that error is presented, and we agree. The district court's refusal to follow the plea bargain agreement rendered the guilty plea involuntary. Escobedo v. State, 643 S.W.2d 243, 246 (Tex. App.--Austin 1982, no pet.). When the court rejected the agreement, appellant was entitled to withdraw his plea. Tex. Code Crim. Proc. Ann. art. 26.13(a)(2) (West 1989). Points of error one through five are sustained.

Appellant asks this Court to order specific performance of the agreement. We agree with the State, however, that appellant is not entitled to specific performance. An agreed punishment recommendation is not binding on the trial court. Id. Therefore, a plea bargain agreement does not become operative and enforceable until it is accepted by the court. Ex parte Williams, 637 S.W.2d 943, 947 (Tex. Crim. App. 1982); Tate v. State, 834 S.W.2d 566, 572 (Tex. App.--Houston [1st Dist.] 1992, pet. ref'd). Because the district court never accepted the agreement between appellant and the State, it never became a "contract" enforceable by specific performance. The proper remedy is that requested by appellant below and erroneously refused by the court: withdrawal of the guilty plea.

The judgment of conviction is reversed and the cause is remanded to the district court for a new trial at which appellant may enter his plea to the indictment. Our disposition of the first five points of error renders appellant's sixth point moot.

 

Before Justices Powers, Jones and B. A. Smith

Reversed and Remanded for New Trial

Filed: July 17, 1996

Do Not Publish

ER>TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN
NO. 03-95-00359-CR
Richard Solis Yanez, Appellant
v.
The State of Texas, Appellee
FROM THE DISTRICT COURT OF CALDWELL COUNTY, 22ND JUDICIAL DISTRICT
NO. 95-032, HONORABLE JACK ROBISON, JUDGE PRESIDING

PER CURIAM

 

Pursuant to a plea bargain agreement, appellant pleaded guilty to an indictment accusing him of driving while intoxicated, third offense. Act of May 27, 1983, 68th Leg. R.S., ch. 303, 3, 1983 Tex. Gen. Laws 1568, 1574 (Tex. Rev. Civ. Stat. Ann. art. 6701l-1(b), (e), since amended and codified at Tex. Penal Code Ann. 49.04, 49.09 (West 1994 & Supp. 1996)). The agreed punishment was imprisonment for two years and a $1000 fine. After admonishing appellant and accepting his plea, the district court ordered the preparation of a presentence report.

When trial resumed one month later, the court announced that it was dissatisfied with the agreed punishment and that it preferred "five years probated with the SAFPF program." Appellant objected that this was not the punishment he agreed to and asked to withdraw his guilty plea. The court denied that request. The court then adjudged appellant guilty and assessed punishment at imprisonment for five years, but suspended imposition of sentence and placed appellant on community supervision. The court also assessed a $1000 fine and announced several special supervisory conditions, including participation in the SAFPF program and use of an ignition interlock.

In five points of error, appellant contends his guilty plea was involuntary under the circumstances and that the district court erred by refusing to permit him to withdraw it. The State concedes that error is presented, and we agree. The district court's refusal to follow the plea bargain agreement rendered the guilty plea involuntary. Escobedo v. State, 643 S.W.2d 243, 246 (Tex. App.--Austin 1982, no pet.). When the court rejected the agreement, appellant was entitled to withdraw his plea. Tex. Code Crim. Proc. Ann. art. 26.13(a)(2) (West 1989). Points of error one through five are sustained.

Appellant asks this Court to order specific performance of the agreement. We agree with the State, however, that appellant is not entitled to specific performance. An agreed punishment recommendation is not binding on the trial court. Id. Therefore, a plea bargain agreement does not become operative and enforceable until it is accepted by the court. Ex parte Williams, 637 S.W.2d 943, 947 (Tex. Crim. App. 1982); Tate v. State, 834 S.W.2d 566, 572 (Tex. App.--Houston [1st Dist.] 1992, pet. ref'd). Because the district court never accepted the agreement between appellant and the State, it never became a "contract" enforceable by specific performance. The proper remedy is that requested by appellant below and erroneously refused by the court: withdrawal of the guilty plea.

The judgment of conviction is reversed and the cause is remanded to the district court for a new trial at which appellant may enter his plea to the indictment. Our disposition of the first five points of error renders appellant's sixth point moot.

 

Before Justices Powers, Jones and B. A. Smith