                                 IN THE
                         TENTH COURT OF APPEALS

                                No. 10-08-00391-CR

REGINALD CALLIS,
                                                           Appellant
v.

THE STATE OF TEXAS,
                                                           Appellee



                           From the 13th District Court
                             Navarro County, Texas
                              Trial Court No. 31761


                          MEMORANDUM OPINION


      Reginald Callis entered a negotiated plea of guilty to possession of a controlled

substance. Pursuant to an agreement between defense counsel and the State, the trial

court allowed Callis to reserve the right to appeal any double jeopardy issues related to

cases in another county. The trial court then sentenced Callis to twelve years in prison.

In a single issue, Callis argues that his plea was involuntary because the State, defense

counsel, and the trial court misrepresented that he could appeal the “issue of double
jeopardy arising from out of county convictions.” Although it disagrees that Callis was

intentionally misled, the State concedes error. We reverse and remand.

         “[A] guilty plea, to be consistent with due process of law, must be entered

knowingly, intelligently, and voluntarily.” Kniatt v. State, 206 S.W.3d 657, 664 (Tex.

Crim. App. 2006), cert. denied, 549 U.S. 1052, 127 S. Ct. 667, 166 L. Ed. 2d 514 (2006);

Boykin v. Alabama, 395 U.S. 238, 242, 89 S. Ct. 1709, 1711, 23 L. Ed. 2d 274 (1969);

McCarthy v. United States, 394 U.S. 459, 466, 89 S. Ct. 1166, 1171, 22 L. Ed. 2d 418 (1969).

It “must be the expression of the defendant’s own free will and must not be induced by

threats, misrepresentations, or improper promises.” Kniatt, 206 S.W.3d at 664; Brady v.

United States, 397 U.S. 742, 755, 90 S. Ct. 1463, 1472, 25 L. Ed. 2d 747 (1970).

         “[A] double jeopardy claim may be raised for the first time on appeal or for the

first time on collateral attack when (1) the undisputed facts show the double jeopardy

violation is clearly apparent on the face of the record and when (2) the enforcement of

the usual rules of procedural default serves no legitimate state interests.” Ramirez v.

State, 36 S.W.3d 660, 666 (Tex. App.—Waco 2001, pet. ref’d); accord Gonzalez v. State, 8

S.W.3d 640, 643 (Tex. Crim. App. 2000). The record contains no facts by which a double

jeopardy determination could be made. Callis could not bring a double jeopardy claim

for the first time on appeal.     Because his guilty plea was premised on a contrary

representation, we agree with Callis and the State that Callis’s guilty plea was

involuntary. See Kniatt, 206 S.W.3d at 664; see also Brady, 397 U.S. at 755, 90 S. Ct. at

1472; Brasfield v. State, 18 S.W.3d 232, 233-34 (Tex. Crim. App. 2000) (Brasfield “pleaded

guilty under the mistaken belief that the trial court could authorize his appeal of the sex


Callis v. State                                                                       Page 2
offender registration statute;” his plea was involuntary); Collins v. State, 795 S.W.2d

777, 778 (Tex. App.—Austin 1990, no pet.) (Collins’s plea was involuntary, as “trial

counsel and the trial court erroneously believed that because this was a negotiated plea,

Collins could appeal the denial of his suppression motion despite his plea of ‘no

contest’”). We sustain Callis’s sole issue.

         We reverse the judgment and remand this cause to the trial court for further

proceedings consistent with this opinion.




                                                      FELIPE REYNA
                                                      Justice
Before Chief Justice Gray,
       Justice Reyna, and
       Justice Davis
Reversed and remanded
Opinion delivered and filed October 21, 2009
Do not publish
[CR25]




Callis v. State                                                                    Page 3
