Opinion
No. 13-04-158-CR
Memorandum Opinion delivered and filed May 19, 2005. DO NOT PUBLISH. Tex.R.App.P. 47.2(b).
On appeal from the 138th District Court of Cameron County, Texas.
Before Justices RODRIGUEZ, CASTILLO, and GARZA.
MEMORANDUM OPINION
Appellant, Jorge Medrano, was arrested and indicted for possession of 1.5 grams of cocaine. In exchange for appellant's plea of guilty, the State agreed not to oppose community supervision if appellant had no prior felony convictions. The trial court accepted appellant's plea of guilty but indicated at the sentencing hearing that it would not grant appellant's request for community supervision. Appellant then asked to have his plea withdrawn, but the trial court refused his request and, instead, adjudicated him guilty and sentenced him to ten years' imprisonment. Appellant now argues that the trial court committed reversible error by not allowing him to withdraw his plea of guilty. Appellant contends that the State agreed to recommend community supervision but failed to do so at the sentencing hearing. Appellant further contends that because the trial court indicated that it would not grant his request for community supervision, he was entitled to withdraw his plea of guilty. We disagree with appellant on both points. If a trial court rejects any bargaining agreement between the State and the defendant, the defendant is permitted to withdraw his plea of guilty or nolo contendere. In this case, the trial court did not reject the agreement between appellant and the State. Contrary to appellant's representation of the record, the State did not agree to recommend community supervision; it agreed not to oppose appellant's request for community supervision if appellant had no prior felony convictions. The record indicates that the State remained silent throughout the sentencing hearing and thereby honored its agreement with appellant. By denying appellant's request for community supervision, the trial court did not reject the bargaining agreement between appellant and the State because the State never agreed to recommend community supervision. Therefore, the trial court did not abuse its discretion by denying appellant's request to withdraw his plea of guilty. Accordingly, appellant's sole issue on appeal is overruled and the judgment of the trial court is affirmed.
See TEX. HEALTH SAFETY CODE ANN. § 481.102(3)(D) (Vernon Supp. 2004-05) (listing cocaine in Penalty Group 1); § 481.115(a), (c) (Vernon 2003) (stating that possession of one gram or more but less than four grams of a controlled substance listed in Penalty Group 1 is a third-degree felony).
See TEX. PENAL CODE ANN. § 12.34 (Vernon 2003) (setting punishment for third-degree felonies at imprisonment for no less than two and no greater than ten years).
The trial court has certified that this is not a plea-bargain case and that appellant has a right to appeal. See TEX. R. APP. P. 25.2(a)(2). Because the agreement between appellant and the State did not include any punishment recommendation, we agree that this is not a plea-bargain case for purposes of rule 25.2. See Perez v. State, 129 S.W.3d 282, 286 (Tex.App.-Corpus Christi 2004, no pet.).
TEX. CODE CRIM. PROC. ANN. art. 26.13(a)(2) (Vernon Supp. 2004-05).
See Besch v. State, 87 S.W.3d 588, 589 (Tex.App.-San Antonio 2002, pet. ref'd) (holding that an agreement to take no position on probation prohibits the State from attempting to influence the sentencing judge).
See Garcia v. State, 960 S.W.2d 151, 154 (Tex.App.-Corpus Christi 1997, no pet.).
CONCURRING MEMORANDUM OPINION
The State asserts, in part, that appellant Jorge Luis Medrano entered a "cold plea." I agree for the reasons stated in Perez v. State, 129 S.W.3d 282, 286 (Tex.App.-Corpus Christi 2004, no pet.), Ramirez v. State, 89 S.W.3d 222, 226 (Tex.App.-Corpus Christi 2002, no pet.), and Dorsey v. State, 55 S.W.2d 227, 234 (Tex.App.-Corpus Christi 2001, no pet.). Thus, viewing the evidence in the light most favorable to the trial court's ruling, respectfully, I conclude that Medrano entered a plea without the benefit of an agreed punishment recommendation. See id. Accordingly, I agree that the trial court did not abuse its discretion by denying Medrano's request to withdraw his guilty plea. See Dorsey, 55 S.W.2d at 234.