Fisher v. State

921 S.W.2d 814, 1996 Tex. App. LEXIS 1412, 1996 WL 170421
CourtCourt of Appeals of Texas
DecidedApril 11, 1996
DocketNo. 14-95-00897-CR
StatusPublished
Cited by6 cases

This text of 921 S.W.2d 814 (Fisher v. State) is published on Counsel Stack Legal Research, covering Court of Appeals of Texas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Fisher v. State, 921 S.W.2d 814, 1996 Tex. App. LEXIS 1412, 1996 WL 170421 (Tex. Ct. App. 1996).

Opinion

OPINION

LEE, Justice.

Appellant was charged with the offense of delivery of cocaine enhanced with two prior convictions. Tex.Health & Safety Code Ann. § 481.112 (Vernon 1992). Appellant entered a plea of guilty to the offense and true to the two enhancement paragraphs. The trial court deferred a finding of guilt and placed appellant on deferred adjudication probation for ten years. Over a year later, the state moved to adjudicate guilt. The trial court revoked appellant’s probation, adjudicated him guilty and assessed punishment, enhanced with the two prior offenses, at imprisonment for fifty years. Appellant brings two points of error contending that his original guilty plea was involuntary because he was not properly admonished with regard to the consequences of deferred adjudication and that the trial court reversibly erred by not sufficiently warning him that he could not appeal the adjudication of guilt. We affirm.

In his first point of error, appellant contends that his original guilty plea was involuntary because the trial court did not adequately warn him of the consequences of deferred adjudication. In Joyner v. State, 882 S.W.2d 59 (Tex.App.—Houston [14th Dist.] 1994, pet. granted), we held that a trial court’s failure to admonish a defendant of the consequences of violation of deferred adjudication did not retroactively render a guilty plea involuntary. Id. at 61. In large part, our decision was based on the court of criminal appeals decision in Price v. State, 866 S.W.2d 606 (Tex.Crim.App.1993) (per curiam with three judges dissenting). In Price, the court held that in misdemeanor cases, failure to inform a defendant of the consequences of a violation of deferred adjudication probation does not render an otherwise unobjectionable plea involuntary. Id. at 613. In Joyner, we simply extended the logic used by the court of criminal appeals to felony cases.

The day after this case was submitted, the court of criminal appeals reversed a contrary decision of the Eastland court of appeals. See Ray v. State, 919 S.W.2d 125 (Tex.Crim.App.1996) (reversing Ray v. State, 877 S.W.2d 425 (Tex.App.—Eastland 1994)); see also Brown v. State, 915 S.W.2d 533 (Tex.App.—Dallas 1996, pet. filed) (reaching same result as Joyner); Ward v. State, 906 S.W.2d 182 (Tex.App.—Austin 1995, pet. ref'd) (same); Fregia v. State, 903 S.W.2d 94 (Tex.App.—Beaumont 1995, pet. filed) (same); Brown v. State, 896 S.W.2d 327 (Tex.App.—Houston [1st Dist.] 1995, pet. ref'd) (same).

In support of his point of error, appellant contends that we should reconsider our decision in Joyner. While the period for rehearing in Ray has not run and while our decision in Joyner is awaiting discretionary review by the court of criminal appeals, we believe that the court of criminal appeals’ opinion in Ray indicates that our decision was sound. We are not inclined to reconsider Joyner.

Alternatively, appellant contends that his case is distinguishable from Joyner be[816]*816cause the plea and the deferment were connected. In Joyner, we held that because Joyner pled guilty without a recommendation as to punishment, there was no connection between his guilty plea and the required deferred adjudication admonishments. Id. at 61. Thus, as aptly summarized by the Austin court of appeals, the following test has developed:

where there is no plea bargain agreement or other connection between a defendant’s guilty plea and the trial court’s later decision to grant deferred adjudication, the court’s failure to fully inform the defendant of the consequences of a probation violation does not render the guilty plea involuntary.

Ward, 906 S.W.2d at 185.

Appellant argues, however, that there was a connection between his guilty plea and the trial court’s decision to defer a finding of guilt. Because' he was indicated as a habitual offender, the minimum sentence available to appellant was twenty-five years. See Tex.Penal Code Ann. § 12.42 (Vernon 1994). Accordingly, appellant contends that he would not have been eligible for deferred adjudication if the prosecutor had not agreed to drop the two enhancement paragraphs. During the plea hearing the trial judge noted that appellant intended to ask for deferred adjudication. The judge warned appellant that there were some disadvantages to seeking deferred adjudication probation and asked appellant if he and his lawyer had discussed the matter. He then asked appellant if he still wanted the court to consider deferred adjudication probation. Appellant responded affirmatively. Appellant argues on appeal that these questions and answers indicate that the plea and the deferred adjudication probation were connected. We disagree.

The record clearly indicates that appellant entered his plea without a punishment recommendation from the state. Appellant’s written guilty plea form, Waiver of Constitutional Rights, Agreement to Stipulate, and Judicial Confession, stated, “no agreed recommendation.” During the plea hearing, appellant pled guilty to the offense and true to the two enhancement offenses. The court then asked appellant if he understood that he was entering the plea without a punishment recommendation, “that is, you and your lawyer and the state’s lawyer have not been able to agree on a punishment in this ease.” Appellant responded, “Yes, sir.” In addition, the trial court admonished appellant and determined that appellant was mentally competent and was entering the plea freely and voluntarily. See Tex.Code CRIM.PROcAnn. art. 26.13 (Vernon 1981). At no time during the plea hearing did appellant indicate that the plea was involuntary or based on a mistaken belief that he had agreed to enter a guilty plea in exchange for a recommendation for deferred adjudication probation. Cf. Martinez v. State, 906 S.W.2d 651, 655 (Tex.App.—Fort Worth 1995, pet. filed) (distinguishing Joyner because the defendant’s guilty plea was the result of a plea agreement).

In short, we believe that our decision in Joyner was sound and are not convinced that appellant’s case is distinguishable. Because there was no agreement as to punishment or other indication that appellant had been promised deferred adjudication, we find that appellant’s guilty plea and the deferred adjudication admonishments were not connected. Therefore, we find that appellant’s guilty plea was entered voluntarily and overrule his first point of error.

In his second point of error, appellant contends that the trial court failed to warn him that he was not entitled to appeal the trial court’s decision to adjudicate guilt if he violated the terms of his deferred adjudication probation.

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Bluebook (online)
921 S.W.2d 814, 1996 Tex. App. LEXIS 1412, 1996 WL 170421, Counsel Stack Legal Research, https://law.counselstack.com/opinion/fisher-v-state-texapp-1996.