Opinion
No. 09-05-095 CR
Submitted on October 10, 2005.
Opinion Delivered November 16, 2005. DO NOT PUBLISH.
On Appeal from the 252nd District Court, Jefferson County, Texas, Trial Cause No. 93618. Affirmed.
Before McKEITHEN, C.J., GAULTNEY and HORTON, JJ.
MEMORANDUM OPINION
Monica Lynn LeBouef entered a non-negotiated guilty plea to an indictment for the state jail felony offense of forgery by passing. See Tex. Pen. Code Ann. § 32.21(Vernon 2003 Supp. 2005). The trial court sentenced LeBouef to two years' confinement in the Texas Department of Criminal Justice, State Jail Division. The trial court certified that this is not a plea-bargain case, and that the defendant has the right to appeal. See Tex.R.App.P. 25.2(d). LeBouef's counsel filed a brief that concludes no arguable error is presented in this appeal. See Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967); High v. State, 573 S.W.2d 807 (Tex.Crim.App. 1978). On April 21, 2005, LeBouef was given an extension of time to file a pro se brief. We received no response from LeBouef. The record contains a document signed by both parties, titled "Agreed Punishment Recommendation," indicating the prosecution would proceed only on Count 1 of the indictment. However, this document was not considered a plea bargain agreement as indicated by the trial court's judgment and certification of LeBouef's right to appeal. The other count was actually a prior felony conviction of LeBouef that was mentioned for enhancement purposes. The prosecution stated this prior felony would have "no valid legal [e]ffect to enhance the State Jail felony" and thus, the State dropped the enhancement count in the indictment. As there was no plea bargain agreement, we have jurisdiction over the appeal. Jack v. State, 871 S.W.2d 741, 744 (Tex.Crim.App. 1994). The record reflects that LeBouef was duly admonished. Tex. Code Crim. Proc. Ann. art. 26.13 (Vernon 1989 Supp. 2005). LeBouef signed a judicial confession and admitted her guilt in open court. She does not contest the voluntariness of her guilty plea. Having reviewed the clerk's and the reporter's records, we find no arguable error requiring us to order appointment of new counsel. Stafford v. State, 813 S.W.2d 503, 511 (Tex.Crim.App. 1991). Accordingly, we affirm the trial court's judgment.
Under the facts of this case, there was no plea bargain agreement because LeBouef's previous conviction for Burglary of a Habitation does not alone satisfy the Penal Code's enhancement requirements. Tex. Pen. Code Ann. § 12.35, 12.42 (Vernon 2003 Supp. 2005). Because this "count" could not have been used by the State to enhance LeBouef's sentence, there was no bargain in the State's agreement to dismiss the count.