Nos. 05-04-00688-CR, 05-04-00689-CR
Opinion Filed May 17, 2005. DO NOT PUBLISH. Tex.R.App.P. 47.
On Appeal from the 363rd Judicial District Court, Dallas County, Texas, Trial Court Cause Nos. F03-55778-Qw and F03-55806-QW. Affirm.
Before Justices WHITTINGTON, FITZGERALD, and RICHTER.
Opinion By Justice RICHTER.
Following a two-day trial, a jury convicted Daniel Alonzo of two aggravated robberies and assessed punishment in each case at forty years confinement and a $10,000 fine. In a single issue, Alonzo now seeks to enforce a plea bargain agreement, signed by the parties and the trial judge and filed prior to trial in each case, that provided for five years imprisonment and a $2500 fine. Finding no binding agreement, we affirm the trial court's judgments.
Background
The record reflects that two days before trial the State offered to recommend a five-year sentence and $2500 fine in exchange for Alonzo's plea of guilty in each case. At a pre-trial hearing later that day, the State informed the judge of its offer. Defense counsel replied that she had discussed the offer briefly with Alonzo but no decision had been made. The judge then admonished Alonzo that the punishment range in each case was from five to ninety-nine years or life in prison. See Tex. Pen. Code Ann. § 12.32, 29.03(b) (Vernon 2003). The judge also explained to Alonzo that if Alonzo accepted the State's offer he would have to serve at least half of the five-year sentence before he could be released but would receive back time credit of approximately eight months. Because the State's offer was valid that day only, the judge recessed the hearing for an hour to allow Alonzo to consider the offer. Because of scheduling conflicts, however, the proceedings were not reconvened until the following afternoon. That morning, about an hour before the hearing, plea papers containing the State's punishment recommendation of five years and a $2500 fine, as well as Alonzo's judicial confessions, were filed in each case. The papers were each signed by Alonzo, the prosecutor, and the trial judge. Nonetheless, when the proceedings reconvened, Alonzo informed the judge that he had "proof" that he had "never been in bad situations," was hard working, and "his only mistake was to be in the wrong place at the wrong time." However, he did not specifically reject the plea offer and no mention was made of the plea papers. The judge then adjourned the hearing and a jury was selected the next day. Following arraignment and outside the jury's presence, Alonzo pleaded "innocent" to both charges. He also pleaded "not guilty" in front of the jury. Discussion
Despite the not-guilty pleas and two-day jury trial, Alonzo maintains the plea papers and his failure to reject the State's offer in open court evidence a binding agreement. As such, he argues, he is entitled to specific performance of the five-year sentence in the plea agreement. We disagree. Although a plea agreement becomes binding upon the acceptance of its terms by the defendant, the prosecutor, and the trial judge, and a written plea agreement signed by the parties and judge is evidence of such acceptance, it is not conclusive. See Ortiz v. State, 933 S.W.2d 102, 104 (Tex.Crim.App. 1996) (plurality op.); White v. State, 929 S.W.2d 502, 504 (Tex.App.-Texarkana 1996, no pet.). The record must also reflect the defendant pleaded guilty in open court and the State introduced sufficient evidence into the record to support the defendant's guilt. See Tex. Code Crim. Proc. Ann. arts. 1.15, 27.13 (Vernon 1989 2005). While the defendant may stipulate to the evidence in writing, the stipulation must be introduced into the record or treated by the parties as if admitted into evidence. See Pitts v. State, 916 S.W.2d 507, 509 (Tex.Crim.App. 1996); Rexford v. State, 818 S.W.2d 494, 495 (Tex.App.-Houston [1st Dist.]), pet. ref'd, 823 S.W.2d 296 (Tex.Crim.App. 1991) (per curiam). Only after the plea has been tendered and evidence produced sufficient to support the defendant's guilt may the judge accept the plea agreement and the defendant's plea. See Tex. Code Crim. Proc. Ann. art. 1.15. Although the judge need not expressly state for the record that he agrees to follow the plea agreement, the record must reflect that the judge, through his actions, comported with the terms of the agreement. See Ditto v. State, 988 S.W.2d 236, 238 n. 4 (Tex.Crim.App. 1999). Here, the record contains a written agreement signed by the parties and judge but it does not show that Alonzo pleaded guilty in open court, that the plea papers were introduced into evidence or treated as such, or that the judge acted in conformance with the terms of the agreement. In fact, the record reflects the opposite. Not more than an hour or so after the plea papers were filed, Alonzo informed the judge he had "proof" of his innocence and did not object when the judge adjourned the pre-trial hearing and began jury selection. Neither Alonzo nor the State mentioned the plea papers and Alonzo specifically pleaded not guilty outside the jury's presence as well as before the jury. Given the record before us, we conclude no binding plea agreement existed and Alonzo is not entitled to enforcement of the five-year sentence. Accordingly, we overrule Alonzo's sole issue and affirm the trial court's judgments.