Roberts, Pearline W. v. State

Opinion

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AFFIRM; Opinion issued January 16, 2013.

In The QI:ourt of appeal~ jfiftb 11i~id of 'atexa~ at Jlalla~ No. 05-11-01071-CR

PEARLINE W. ROBERTS, Appellant

V. THE STATE OF TEXAS, Appellee

On Appeal from the Criminal District Court No. 3 · Dallas County, Texas Trial Court Cause No. F10-61237-J

MEMORANDUM OPINION Before Justices O'Neill, FitzGerald, and Lang-Miers Opinion by Justice O'Neill

Appellant appeals an order revoking her probation. Appellant pleaded true to the

allegations in the State's motion to revoke in exchange for the State's recommendation of a 180-

day sentence. The trial court did not follow the plea agreement and assessed punishment at two-

years' confmement. In her sole point of error, appellant contends the trial court abused its

discretion in assessing the two-year sentence without first giving her an opportunity to withdraw

her plea, thereby rendering the plea involuntary. For the following reasons, we affirm the trial

court's order. 1 Appellant initially pleaded guilty to possession of a controlled substance. The terms of

the plea agreement required appellant to participate in a Substance Abuse Punishment Facility

Special Needs (SAPF) Program for not less than ninety-days or more than twelve months and

comply with all rules and regulations of the program. Appellant refused to enter the SAPF

program and the State filed a motion to revoke shortly thereafter. Appellant agreed to plead true

to the allegations in the State's motion to revoke if the State would recommend a 180-day·

sentence. At the revocation hearing, the trial court informed appellant the court was not

required to follow the plea agreement. However, the trial court also told appellant she would be

allowed to withdraw her plea if the trial court did not follow the plea agreement.

Appellant then pleaded true to the allegations in the State's motion to revoke. The trial

court did not follow the plea agreement and sentenced appellant to two-years' confmement. In

this appeal, appellant asserts her plea was rendered involuntary when the trial court did not give

her an opportunity to withdraw her plea before sentencing her. It is undisputed that, unlike in a

guilty plea case, a trial court is not required to allow a defendant to withdraw a negotiated plea of

true even if the court does not follow a plea agreement. Gutierrez v. State, 108 S.W.3d 304, 309

(Tex. Crirn. App. 2003). Appellant however contends "once the trial court gave appellant the

right to withdraw her plea, the trial court abused its discretion by refusing this right. making

appellant's plea involuntary."

The State asserts appellant waived error by not requesting the trial court to allow her to

withdraw her plea or otherwise object at the plea hearing or in a motion for new trial. Rule

33.l(a) requires an appellant to raise a timely objection in the trial court as a prerequisite to

raising an error on appeal. An exception exists only for absolute systemic requirements or

nonwaivable rights. Mendez v. State, 138 S.W.3d 334, 350 (Tex. Crirn. App. 2004). Failure to

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permit a defendant to withdraw a plea is not such a requirement. See id. Likewise, questions

concerning the voluntariness of a guilty plea do not fall within the definition of such

"fundamental" requirements. Williams v. State, 10 S.W.3d 788, 789 (Tex. App.-Waco 2000,

pet. refd). We conclude appellant waived her complaints relating to the trial court's refusal to

permit her to withdraw her plea by failing to request withdrawal by timely objection or motion

for new trial. We resolve the sole issue against appellant and affirm the trial court's judgment.

Do Not Publish TEx. R. APP. P. 47

111071F.U05

3 Qrourt of App-eals lJitfth, ili.strid of wexa.s at ilalla.s -JUDGMENT

Pearline W. Roberts, Appellant On Appeal from the Criminal District Court No.3, Dallas County, Texas No. 05-11-01071-CR V. Trial Court Cause No. Fl0-61237-J. Opinion delivered by Justice O'Neill. The State of Texas, Appellee Justices FitzGerald and Lang-Miers participating.

Based on the Court's opinion of this date, the judgment of the trial court is AFFIRMED.

Judgment entered this 16th day of January, 2013.