Opinion
No. 05-08-01216-CR
Opinion Filed December 2, 2009. DO NOT PUBLISH Tex. R. App. P. 47.2(b).
On Appeal from the 194th Judicial District Court Dallas County, Texas, Trial Court Cause No. F06-86896-M.
Before Justices MOSELEY, FITZGERALD, and LANG-MIERS.
MEMORANDUM OPINION
Carlos Subada Williams entered a plea of guilty to possession of a controlled substance pursuant to a plea agreement. The trial court accepted the agreement and placed Williams under community supervision for four years, suspending the ten year prison sentence. The State later moved to revoke William's probation. In the revocation proceeding, Williams entered into a new plea agreement that exchanged his plea of true for the State's recommendation of a two year prison sentence. After the entry of Williams's plea of true, the trial court found that Williams violated a number of the conditions of his probation. The court then refused to accept the plea agreement and sentenced Williams to eight years' imprisonment. In the first of two points of error, Williams contends his plea of true was involuntary because of his belief that he would be permitted to withdraw his plea if the trial court refused to accept the plea agreement. His second point of error argues the judgment does not show the specific conditions of his probation the trial court found were violated. The background of the case and the evidence adduced at trial are well known to the parties; thus, we do not recite them here in detail. Because all dispositive issues are settled in law, we issue this memorandum opinion. Tex. R. App. P. 47.2(a), 47.4. We affirm the trial court's judgment as modified. In a proceeding to revoke probation, the trial court is under no obligation to allow a defendant to withdraw his plea if the court refuses to abide by the defendant's plea agreement. Gutierrez v. State, 108 S.W.3d 304, 309-10 (Tex. Crim. App. 2003) (statutory right to withdraw a plea in felony prosecution does not apply to revocation proceedings). Williams argues, however, that his plea of true was involuntary because the plea agreement form stated, "The prosecuting attorney's recommendation as to punishment is not binding on the Court. You will be permitted to withdraw your plea if the court rejects any plea bargain made in this case." At the sentencing hearing, Williams entered his plea of true to the allegations and testified before the trial court. The court found Williams violated the conditions of his probation and stated, "I am not following the plea bargain agreement, I am sentencing you to eight years confinement." The record reflects Williams said, "How long is this? He told me eight years." However, neither Williams nor his attorney asked to or filed a motion to withdraw his plea of true. The Texas Court of Criminal Appeals recently discussed the necessity for preservation of error regarding the withdrawal of a plea. Moore v. State, No. PD-1340-08, 2009 WL 1873493 at *3-4 (Tex. Crim. App. July 1, 2009). In Moore, a felony case, the court determined the defendant's failure to raise his statutory right to withdraw his plea at the plea hearing or sentencing hearing failed to preserve the error for review on appeal. Id. We agree the same rule applies here. (Indeed, the very language of the agreement implies action by Williams, that "You will be permitted to withdraw your plea.") Assuming the language of the plea agreement form gave Williams a right to withdraw his plea, he never requested to do so. The record shows that Williams did not request to withdraw his plea or take any action to notify the trial court that he wanted to do so. Accordingly, he has not preserved error. See Tex. R. App. P. 33.1; Moore, 2009 WL 1873493 at *3-4. We overrule Williams's first point of error. The trial court found on the record that Williams violated conditions D, F, H, L, Q, and R of his probation. In his second point of error, Williams points out that the trial court's judgment does not contain findings of the conditions of community supervision that were violated. The State agrees. We sustain Williams's second point of error. We modify the trial court's judgment to reflect accurately the trial court's findings that Williams violated conditions D, F, H, L, Q, and R. Tex. R. App. P. 43.2(b). Asberry v. State, 813 S.W.2d 526, 531 (Tex. App.-Dallas 1991, pet. ref'd). As modified, we affirm the trial court's judgment.
The record reflects the trial court said Williams violated condition "O." However, no condition "O" was alleged. Condition "Q" required appellant to attend "Safe Streets" training, which he admitted he did not do. It is apparent the trial court found a violation of condition "Q" and that the "O" in the reporter's record is a typographical error.