                                    NO. 07-03-0421-CR

                              IN THE COURT OF APPEALS

                       FOR THE SEVENTH DISTRICT OF TEXAS

                                       AT AMARILLO

                                         PANEL C

                                SEPTEMBER 7, 2004
                          ______________________________

                              MONTY JOE KUYKENDALL,

                                                                 Appellant

                                              v.

                                 THE STATE OF TEXAS,

                                                      Appellee
                        _________________________________

               FROM THE 31ST DISTRICT COURT OF GRAY COUNTY;

                  NO. 6212; HON. STEVEN R. EMMERT, PRESIDING
                        _______________________________

Before JOHNSON, C.J. and QUINN and REAVIS, JJ.

       Appellant Monty Joe Kuykendall appeals his conviction for delivering a controlled

substance, i.e. methamphetamine. Through four issues, he contends that 1) the trial court

erred by refusing to follow the plea bargain after accepting it, 2) his conviction by a jury

violated constitutional and statutory provisions against double jeopardy, 3) the trial court’s

purported involvement in plea negotiations violated due process and fundamental fairness,

and 4) the trial court erred during the punishment phase by failing to instruct the jury that

it must find, beyond reasonable doubt, that he committed any extraneous offense before
it could consider the offense for purposes of punishment. We affirm the judgment of the

trial court.

                      Issue One – Failure to Abide by Plea Bargain

        The first issue we address is that involving the trial court’s purported refusal to follow

a plea bargain after accepting the bargain. We overrule the issue.

        The record indicates that appellant and the State entered into a plea bargain. At the

hearing that followed, appellant pled guilty. In response, the trial judge said: “Okay. The

Court will accept and enter of record your plea of guilty.” Evidence of appellant’s guilt was

then presented. Thereafter the trial court stated:

        Okay. Mr. Kuykendall, I’m not going to approve the plea bargain agreement.
        I will allow you to withdraw your plea of guilty and I will enter a not guilty
        pleafor you. And any statement, or admissions, or confessions that you
        made in this hearing will not be admissible against you for any reason in any
        subsequent hearing in this trial. . . .

This, according to appellant, evinced the trial court’s refusal to abide by a plea agreement

that it previously accepted.      He is mistaken in concluding that the agreement was

accepted.

        It is true that the trial court must inform the accused of its intent to accept or reject

the plea bargain before adjudicating a defendant’s guilt. TEX . CODE CRIM . PROC . ANN . art.

26.13(a)(2) (Vernon Supp. 2004) (stating that if an agreement exists, “the court shall inform

the defendant whether it will follow or reject [it] . . . in open court and before any finding on

the plea”); see also Allen v. State, 827 S.W.2d 69, 70 (Tex. App.—Houston [1st Dist.] 1992,

no pet.) (holding that the trial court must announce its acceptance or rejection of a plea

bargain agreement before any finding of guilt is entered). Yet, accepting appellant’s plea

of guilty does not alone mean that it also accepted the plea bargain. In that circumstance,

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the plea itself is conditionally accepted, while the plea agreement is not. Ortiz v. State, 933

S.W.2d 102, 104 (Tex. Crim. App. 1996). Moreover, nothing else uttered by the trial court

at the hearing evinced an intent to be bound by the agreement. Consequently, the record

before us does not illustrate that the trial court refused to follow a plea bargain that it

accepted.

                              Issue Two - Double Jeopardy

       Appellant’s second issue is dependent upon our sustaining his first. That is, he

claims his right to avoid being twice placed in jeopardy was violated because the trial court

originally accepted the plea agreement but nonetheless bound him over for trial on the

merits. Overruling the first issue has rendered the second moot. So we overrule it as well.

               Issue Three - Judicial Involvement in Plea Negotiations

       Appellant next contends that the trial court improperly participated in plea

negotiations. This occurred when it refused to accept the bargain after appellant refused

to disclose the identity of the person from whom he bought the methamphetamine. We

overrule the issue.

       At the conclusion of appellant’s testimony during the plea hearing, the following

exchange occurred:

       COURT: Where did you get the meth, Mr. Kuykendall?

       DEFENDANT: Just what I acquired off the street.

       COURT: That large a quantity?

       DEFENDANT: Yeah.

       COURT: Did you buy a little bit here and there, or did you buy it from
       somebody in particular?


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       DEFENDANT: Just, here and there, I guess.

       COURT: You guess? I mean, I don’t know. I’m asking you.

       DEFENDANT: I’m not going to tell you where I was getting it.

       COURT: Okay. You can return to your seat.
       Is there a PSI in this case?

After a probation officer answered the trial court’s last question in the negative, it rejected

the bargain.

       Authority holds that a trial court should not participate in plea bargain discussions

until an agreement has been reached between the prosecutor and the defendant. State

ex rel. Bryan v. McDonald, 662 S.W.2d 5, 8-9 (Tex. Crim. App. 1983); Maya v. State, 932

S.W.2d 633, 637 n.7 (Tex. App.—Houston [14th Dist.] 1996, no pet.). In this instance, the

plea bargain had been agreed upon by the parties and announced to the court. It was only

after the terms of the agreement had been announced and the evidence of appellant’s guilt

presented that the trial court propounded the questions mentioned above. Furthermore,

nothing of record reveals the specific reasons upon which it relied in determining to reject

the bargain. Whether it was because appellant refused to disclose his sources is mere

speculation; indeed, the timing between the questions and the court’s decision could well

be mere coincidence. Nor does the record illustrate that the trial court informed appellant

or anyone else that it made its acceptance or rejection of the plea bargain contingent upon

appellant providing the requested information. See Papillion v. State, 908 S.W.2d 621,

624 (Tex. App.—Beaumont 1995, no pet.) (holding that the court exceeded its authority by

inserting additional, non-negotiated terms into the plea bargain and then making

acceptance or rejection of the plea bargain contingent on compliance with those terms).


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Given that the trial court has the discretion to accept or reject a plea bargain, Ortiz v. State,

885 S.W.2d 271, 273 (Tex. App.—Corpus Christi 1994),aff’d, 933 S.W.2d 102 (Tex. 1996);

Allen v. State, 827 S.W.2d at 70, and the record contains little if any evidence suggesting

that it intended or attempted to make disclosure of another’s identity a condition of the

agreement, the appellant failed to establish his claim on appeal.

                                       Jury Instruction

       In his final issue, appellant complains about the trial court’s failure to submit an

instruction to the jury. The instruction involved the jury’s need to first determine whether

he committed (beyond reasonable doubt) the extraneous offenses attributed to him during

the punishment phase of the trial before those offenses could be weighed in setting

punishment. We overrule the issue.

       The State concedes error even though no one solicited the instruction. See Huizar

v. State, 12 S.W.3d 479, 483 (Tex. Crim. App. 2000) (holding that the instruction is “law

applicable to the case” which the defendant is not required to object to or request in order

for the trial court to instruct the jury). Nevertheless, it argues that the error was harmless.

We agree.

       Authority requires us to review potential harm under the standard announced in

Almanza v. State, 686 S.W.2d 157 (Tex. Crim. App. 1985). Ellison v. State, 86 S.W.3d

226, 228 (Tex. Crim. App. 2002); Huizar v. State, 12 S.W.3d at 484. So, to be reversible,

the error must be egregious, i.e. it must have the effect of denying appellant a fair and

impartial trial. Almanza v. State, 686 S.W.2d at 171. And, in determining whether it is of

that ilk, we consider such indicia as the entire jury charge, the state and quantum of



                                               5
evidence evincing guilt, the argument of counsel, and any other relevant information

appearing of record. Id.

       As a repeat offender, the punishment range for appellant was 15 years to 99 years

or life imprisonment with a maximum fine of $10,000. The jury assessed his punishment

at 99 years with a $10,000 fine. So, the sentence fell within the range permitted by statute,

and the assessment of 99 years alone does not itself show harm. See Huizar v. State, 29

S.W.3d 249, 251 (Tex. App.—San Antonio 2000, pet. ref’d).

       Furthermore, two of the three extraneous offenses offered at the punishment phase

reflected two other drug transactions involving the same undercover officer who bought

drugs from appellant as part of the crime for which appellant was indicted. The evidence

of those offenses consisted not only of the officer’s own testimony but also of tape

recordings and written transcripts capturing the dialogue uttered during the actual

transactions. Moreover, that the transactions occurred was relatively undisputed. In other

words, appellant did not contest the fact that he engaged in those sales but rather

questioned whether the State established the requisite chain of custody viz one packet of

drugs. Yet, appellant does not attack the trial court’s resolution of that question (chain of

custody) on appeal.

       Next, the missing instruction about which appellant complains was actually included

in the charge, but it referenced the third extraneous offense, i.e. the one contained in the

enhancement paragraph of the indictment. In other words, the trial court told the jury it had

to determine beyond reasonable doubt whether appellant had been previously convicted

of the crime alleged in the indictment before it could consider it while deliberating

punishment.    So, while the instruction did not expressly encompass the unindicted

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extraneous offenses it did address the extraneous offense for which appellant had already

been tried and convicted. And, we have no basis upon which to conclude that the jury

ignored the instruction when it came to considering the unindicted offenses. See Miranda

v. State, 993 S.W.2d 323, 332 (Tex. App.—Austin 1999, no pet.) (holding that there was

no evidence that the jury did not follow, during the punishment phase, the instruction on

extraneous offenses given during the guilt/innocence phase).

       In view of the large and rather undisputed quantum of evidence establishing his guilt

for the extraneous offenses, the evidence that the instruction was given the jury in

reference to an extraneous offense for which appellant had already been convicted, the

evidence that appellant had already been convicted of another offense, and that the range

of punishment fell within the range allowed by statute, we cannot say that the error at issue

deprived appellant of a fair and impartial trial. Simply put, it was not egregious.

       Accordingly, the judgment is affirmed.



                                                  Brian Quinn
                                                    Justice



Do not publish.




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