Hargrave v. State

10 S.W.3d 355, 1999 Tex. App. LEXIS 9382, 1999 WL 250839
CourtCourt of Appeals of Texas
DecidedDecember 16, 1999
Docket01-97-01437-CR, 01-97-01438-CR
StatusPublished
Cited by37 cases

This text of 10 S.W.3d 355 (Hargrave 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
Hargrave v. State, 10 S.W.3d 355, 1999 Tex. App. LEXIS 9382, 1999 WL 250839 (Tex. Ct. App. 1999).

Opinions

OPINION

SCHNEIDER, Chief Justice.

In 1994, appellant, James Moore Har-grave, pled no contest to aggravated assault, and the trial court, in accordance with a plea agreement, assessed punishment at five years deferred adjudication and a $500 fine. In 1997, the State moved to adjudicate guilt, alleging that appellant had committed a second offense, theft of over $200,000. Appellant pled true to the allegations of the motion to adjudicate, and the trial court found him guilty and assessed punishment at 10 years confinement on the aggravated assault charge. Appellant also pled no contest to the theft charge, and the trial court, without an agreed recommendation as to punishment, assessed punishment at 15 years confinement. These appeals followed.1 We affirm.

In two related points of error, appellant contends the trial court should have sua sponte withdrawn: (1) his plea , of true to the motion to adjudicate and (2) his plea of no contest to the theft charge, because appellant misunderstood the plea agreement.

The Aggravated Assault Case

Appellant argues that his plea of true to the motion to adjudicate was involuntary. By this point of error, he seeks review of the trial court’s decision to adjudicate his guilt. However, no appeal may be taken from the trial court’s decision to proceed with an adjudication of guilt on a deferred adjudication. Phynes v. State, 828 S.W.2d 1, 2 (Tex.Crim.App.1992); Olowosuko v. State, 826 S.W.2d 940, 942 (Tex.Crim.App.1992). Because we have no jurisdiction to review such claim, we dismiss the appeal in cause number 01-97-01438-CR. Phynes, 828 S.W.2d at 2.

The Theft Case

Appellant also argues that the trial court should have sua sponte withdrawn his plea of no contest to the theft charge. Both the appellant and the State agree that appellant pled guilty “without an agreed recommendation” as to punishment, and that no plea agreement was presented to the trial court. However, when the prosecutor argued that the appellant should serve time in prison, defense counsel objected:

[Defense Counsel]: I would have an objection to the district attorney asking that you put Mr. Hargrave in prison. It was our understanding that at the time of agreeing to this plea that the district attorney was going to stand silent on punishment. That was his statement to me and my client.
[The Court]: If it is, I would like to know that. I have examined the plea papers. There is absolutely nothing about that agreement on the plea papers; and my understanding has been always that if that’s part of the agreement, then that needs to be put on the documents so that everyone understands that is part of the agreement. And it usually says without a recommendation, the State agrees to stand silent as to punishment. All I see on the plea papers is without an agreed recommendation. I will let both of you argue, and I will do what I want to do.
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[Defense Counsel]: Judge, again, it is our understanding that the district attorney would stand silent at punishment as part of our plea.
[358]*358[Prosecutor]: That’s not my understanding. My understanding is the same thing that I do at every trial. We have had the same conversations off the record in private. I never asked for a term of years. I wouldn’t even bother to show up if I was going to stand silent during the punishment proceeding. There is no reason for me to be here if I am going to just stand there.
[Trial Court]: So, your understanding is that you would not be asking for a particular amount of years?
[Prosecutor]: That is correct.
[Defense counsel]: My understanding is that he would stand silent on punishment.
[Prosecutor]: Well, I disagree with their interpretation. I don’t remember saying that, and I certainly didn’t put it in writing, and one of us should have been more careful. That is not my understanding.

After an off the bench discussion between the trial court and the attorneys, the trial court noted that the issue was that the parties each had different interpretations of the term “no agreed recommendation” as to punishment; the prosecutor believed that it meant that no specific amount of years would be requested and the defense counsel believed that it meant the State would “stand silent” on the issue of punishment. After noting the difference of opinion, the following colloquy took place between the trial judge and the appellant:

[Trial judge]: The Court’s concern, of course, at this point was that that could cause a problem down the road with regard to allegations of involuntary plea; and the Court basically convened with counsel off the record to tell both sides that it was not proceeding any further until the issue was resolved. And if Mr. Hargrave wished to withdraw his plea, at this point we would set it for trial and begin the first week in January.
Mr. Hargrave, were these things communicated to you during the last 30-40 minutes?
[Appellant]: Yes, your Honor.
[Trial judge]: And you fully understand that the Court, if you felt that you were induced to enter your plea of no contest and your plea of true based upon your attorney’s conversation with you or your understanding that the State would not argue anything with regard to punishment, you understand that the Court was willing to allow you to withdraw your plea on that basis?
[Appellant]: Yes, Your Honor.
[Trial judge]: And I guess the question is, Mr. Hargrave: Having had an opportunity to consult with your lawyers, at this juncture, is it your desire to withdraw your pleas of no contest to the aggregate theft charge and your plea of true to the motion to adjudicate guilt? [Appellant]: At this time the original plea, Your Honor, was based upon when [the prosecutor] told me what [defense counsel] told me that he would remain silent during the punishment phase and wouldn’t recommend anything. At this time I would — instead of coming back for a trial in January, would like to have you decide my punishment.
[Trial judge]: All right. So, I guess the question, Mr. Hargrave is this: Do you still desire to waive your right to a jury trial on the charge of aggregate theft; and do you wish to waive your right to a full hearing before the Court on the motion to adjudicate guilt with regard to the merits?
[Appellant]: Yes, Your Honor.
[Trial Judge]: And so the record is totally clear, you were admonished as to the full range of punishment. You were admonished as to your right to a jury trial and a full hearing. You were admonished as to the consequences of entering your pleas. You were admonished that there was no agreed recommendation from the State. Essentially Mr. Hargrave, what I am trying to as[359]

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Cite This Page — Counsel Stack

Bluebook (online)
10 S.W.3d 355, 1999 Tex. App. LEXIS 9382, 1999 WL 250839, Counsel Stack Legal Research, https://law.counselstack.com/opinion/hargrave-v-state-texapp-1999.