David Torres Jr. v. State

• Court: Court of Appeals of Texas
• Decided: March 12, 2014
• Docket: 09-13-00405-CR
• Status: Published

Opinion

In The

Court of Appeals Ninth District of Texas at Beaumont ________________

NO. 09-13-00405-CR ________________

DAVID TORRES JR., Appellant

V.

THE STATE OF TEXAS, Appellee __________________________________________________________________

On Appeal from the 252nd District Court Jefferson County, Texas Trial Cause No. 13-16367 __________________________________________________________________

MEMORANDUM OPINION

Appellant David Torres appeals the revocation of his deferred adjudication

community supervision. In his sole appellate issue, Torres argues that his plea of

“true” during the revocation proceeding was not freely and voluntarily made

because the trial court did not follow the plea bargain agreement concerning his

punishment. We affirm the trial court’s judgment.

1 BACKGROUND

Pursuant to a plea bargain agreement, Torres pleaded guilty to burglary of a

habitation. The trial court found the evidence sufficient to find Torres guilty, but

deferred further proceedings and placed Torres on community supervision for five

years. The State subsequently filed a motion to revoke Torres’s unadjudicated

community supervision, and Torres pleaded “true” to one violation of the

conditions of his community supervision. The trial court found that Torres violated

the conditions of his community supervision, found Torres guilty of burglary of a

habitation, and assessed punishment at eighteen years of confinement.

ISSUE

In his sole issue, Torres contends that the trial court’s refusal to follow the

plea bargain agreement upon revocation rendered his plea of “true” to the

violations of the terms of his community supervision involuntary. Torres contends

that a plea bargain agreement provided that the trial court would sentence him to

ten years of confinement upon conviction. According to Torres, because the trial

court declined to follow the plea bargain agreement and instead sentenced him to

eighteen years of confinement, the trial court should have permitted him to

withdraw his plea of “true.” Specifically, Torres argues that “[a] plea of true to a

2 violation of probation in a revocation hearing is similar to a plea of guilty. The plea

must be made knowingly, voluntarily[,] and with advice of counsel.”

Torres cites Article 26.13(a)(2) of the Texas Code of Criminal Procedure,

Myers v. State, 623 S.W.2d 397 (Tex. Crim. App. 1981), Ex Parte Shuflin, 528

S.W.2d 610 (Tex. Crim. App. 1975), and Brady v. U.S., 397 U.S. 742 (1970) in

support of his argument. See Tex. Code Crim. Proc. Ann. art. 26.13(a)(2) (West

Supp. 2013). However, none of these authorities deals with the situation presented

in this case, i.e., a purported plea bargain agreement pertaining to sentencing upon

revocation of deferred adjudication community supervision. See Brady, 347 U.S. at

743-44; Myers, 623 S.W.2d at 398; Shuflin, 528 S.W.2d at 611; see also Tex. Code

Crim. Proc. Ann. art. 26.13(a)(2).

The Court of Criminal Appeals has explained that “in the context of

revocation proceedings, the legislature has not authorized binding plea agreements,

has not required the court to inquire as to the existence of a plea agreement or

admonish the defendant pursuant to [article] 26.13, and has not provided for

withdrawal of a plea after sentencing.” Gutierrez v. State, 108 S.W.3d 304, 309-10

(Tex. Crim. App. 2003). “Even if the parties purport to have a plea bargain as to

the sentence to be assessed after adjudication, the trial court is not bound by the

rules that apply to plea bargains at an original sentencing; . . . ‘once the trial court

3 proceeds to adjudication, it is restricted in the sentence it imposes only by the

relevant statutory limits.’” Ex parte Huskins, 176 S.W.3d 818, 819 (Tex. Crim.

App. 2005) (quoting Von Schounmacher v. State, 5 S.W.3d 221, 223 (Tex. Crim.

App. 1999)).

The eighteen-year sentence imposed by the trial court was within the range

of punishment authorized by statute. See Tex. Penal Code Ann. § 12.33 (West

2011) (The range of punishment for a second-degree felony is two to twenty years

of confinement and a fine not to exceed $10,000.); Id. § 30.02(a)(1), (c)(2)

(Burglary of a habitation is a second-degree felony.). The trial court was not

obligated to follow the purported plea-bargain agreement as to what Torres’s

punishment would be upon revocation, nor was the trial court obligated to permit

Torres to withdraw his plea of “true” to the alleged violation of the terms of his

community supervision. See Ex parte Huskins, 176 S.W.3d at 819; Gutierrez, 108

S.W.3d at 309-10. Accordingly, we overrule Torres’s issue and affirm the trial

court’s judgment.

4 AFFIRMED.

______________________________ STEVE McKEITHEN Chief Justice Submitted on February 27, 2014 Opinion Delivered March 12, 2014 Do Not Publish

Before McKeithen, C.J., Horton and Johnson, JJ.