Grodis v. State

921 S.W.2d 502, 1996 Tex. App. LEXIS 1677, 1996 WL 199678
CourtCourt of Appeals of Texas
DecidedApril 25, 1996
DocketNo. 2-95-234-CR
StatusPublished
Cited by9 cases

This text of 921 S.W.2d 502 (Grodis 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
Grodis v. State, 921 S.W.2d 502, 1996 Tex. App. LEXIS 1677, 1996 WL 199678 (Tex. Ct. App. 1996).

Opinion

OPINION

HOLMAN, Justice.

Appellant William Joseph Grodis pled guilty to aggravated assault with a deadly weapon, pursuant to a plea bargain agreement. Grodis and the State considered several different conditions for probation while negotiating the terms of his plea bargained sentence. They both agree that they expressly discarded some probation conditions before agreeing on five years of deferred adjudication probation with other conditions. The trial court followed the State’s recommendation for five years of deferred adjudication, but imposed one of the previously discarded probation conditions on Grodis after receiving his acceptance of the condition. The question before this court is whether a trial court can impose conditions of probation which had previously been expressly declined by a defendant. Finding that the trial court followed the recommended sentence without any meaningful departure from the plea bargained agreement and with Grodis’ full acceptance, we affirm.

Grodis threatened his wife with a knife on November 24, 1993. Grodis and the State negotiated a plea bargain agreement for five years of deferred adjudication probation. As conditions of that probation, they agreed that Grodis would totally abstain from the use of [504]*504alcoholic beverages, would not possess weapons of any kind, and would submit to random urinalysis and breathalyzer tests. During their negotiations, the State proposed that Grodis also submit to a “TAIP” alcohol and drug assessment, and anger control counseling, but these conditions were refused, and were stricken from the written plea agreement.

At Grodis’ guilty plea hearing, Grodis’ wife (the complainant) testified that he had completed two batterer’s intervention programs. However, the trial court examined the evidence and discovered that Grodis apparently completed the programs before the incident for which he was charged, and stated “the program must not have done much good if he committed this act after going through the program.” As a result, the trial court specifically required that Grodis undergo the previously rejected counseling as a condition of the five years of deferred adjudication probation.

In his first point of error, Grodis argues that the trial court erred in refusing to follow the State’s recommendation in accordance with a plea bargain agreement, and by not rejecting the agreement in total. Grodis cites us to Washington v. McSpadden, 676 S.W.2d 420 (Tex.Crim.App.1984) for the proposition that a trial court must either accept a plea agreement in total or reject it. In his concurrence, Judge Miller does argue that “Art. 26.18 should be interpreted to mean that terms and conditions of probation, as well as the granting of probation itself, may be plea bargained for as surely as any other aspect of punishment.” Id. at 424 (Miller, J., concurring). Judge Clinton’s concurring/dissent, and Judge Teague’s dissent, seem also to support the argument that in a plea bargain agreement, otherwise acceptable conditions may not be imposed by the court in opposition to the agreement. Id. at 425 (Clinton, J., dissenting and concurring), 426-27 (Teague, J., dissenting). The majority opinion, on the other hand, clearly held that a thirty-day jail sentence not bargained for could be imposed “as a condition” which was “clearly a discretionary act” “within the judge’s power” under the then existing article 42.12 of the Texas Code of Criminal Procedure. Id. at 422. Thus the majority recognized that the trial court had discretion to add conditions to the sentence agreed to in the plea bargain, in contrast to the arguments of Judges Miller, Clinton and Teague.

Grodis cites Perkins v. Court of Appeals for the Third Supreme Judicial District of Texas as support for his argument that “the court has a nondiscretionary duty to specifically enforce the plea agreement as it was made by the parties.” 738 S.W.2d 276 (Tex.Crim.App.1987) (mandamus case brought by the trial court). The State concedes that the trial court added probation conditions to those negotiated by the State and Grodis, and cites Fielder v. State to support the proposition that this court should grant Gro-dis’ request to reform the judgment to that which was bargained for. 834 S.W.2d 509 (Tex.App.—Fort Worth 1992, pet. ref'd). We decline to follow the mutual request of Grodis and the State.

In Perkim, the actions of the trial court would have forced the defendant to stand trial for murder after he had plea bargained for a twenty-five year maximum sentence. Perkins, 738 S.W.2d at 278-80. In Fielder, this court found that the defendant’s plea was involuntary because the defendant and the State were in agreement that no jail time was expected, yet the trial court imposed 180 days incarceration. Fielder, 834 S.W.2d at 510-14. We find that this ease is distinguishable because the trial court’s actions do not place Grodis at risk of receiving any incarceration in excess of the terms of his plea bargain.1

Here the trial court added a condition of counseling and assessment to the sentence of five years deferred adjudication probation. While we might question the efficacy of such conditions in light of the apparent failure of the batterer’s program to modify Grodis’ past behavior, such conditions would certainly “have a reasonable relationship to the treatment of the accused and the protection [505]*505of the public.” Tamez v. State, 534 S.W.2d 686, 691 (Tex.Crim.App.1976) (citing Porth v. Templar, 453 F.2d 330 (10th Cir.1971)). Counseling and assessment definitely appear to fall -within the “continuum of programs and sanctions, -with conditions imposed by the court” which are provided for in the definition of “Community supervision” for deferred adjudication probation. Tex.Code Crim.ProcAnn. art. 42.12, § 2(2) (Vernon Supp.1996). Consequently, we find that the trial court did follow the State’s recommendation for five years deferred adjudication, and that the conditions added did not constitute any meaningful departure from the plea bargained agreement. Point of error one is overruled.

In his second point of error, Grodis contends that the trial court did not follow the plea agreement and erred by not allowing the defendant to withdraw his plea of guilty. Grodis cites us to article 26.13(a)(2) of the Texas Code of Criminal Procedure to support his argument that “[i]f the agreement is not accepted then the defendant shall be permitted to withdraw his plea.” The pertinent portion of the article reads “Should the court reject any such agreement, the defendant shall be permitted to withdraw his plea of guilty or nolo contendere.” Tex.Code Crim.ProcAnn. art. 26.13(a)(2) (Vernon 1989) (emphasis added).

As we have already noted, the trial court did accept the plea bargained agreement, but added discretionary conditions to the terms of the agreement.

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Bluebook (online)
921 S.W.2d 502, 1996 Tex. App. LEXIS 1677, 1996 WL 199678, Counsel Stack Legal Research, https://law.counselstack.com/opinion/grodis-v-state-texapp-1996.