      TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN


                                      NO. 03-04-00067-CR
                                      NO. 03-04-00068-CR



                                 Jason Edward Cole, Appellant

                                                 v.

                                  The State of Texas, Appellee




   FROM THE DISTRICT COURT OF BASTROP COUNTY, 21ST JUDICIAL DISTRICT
  NOS. 10,502 & 10,589, HONORABLE HAROLD ROBERT TOWSLEE, JUDGE PRESIDING



                            MEMORANDUM OPINION


               Appellant Jason Edward Cole entered a plea of guilty to the offenses of burglary of

a habitation and aggravated robbery. See Tex. Pen. Code Ann. §§ 29.03(a)(2), 30.02(a)(1) (West

2003). The trial court sentenced him to twenty years’ imprisonment for burglary plus thirty years’

imprisonment for aggravated robbery. Cole brings two issues on appeal. First, he claims that the

State failed to honor what he characterizes as a “plea bargain” not to seek a sentence of more than

twenty years. Second, he contends that he received ineffective assistance of counsel. For the reasons

stated below, we affirm the judgment of the district court.


                                         BACKGROUND

               The following facts are not in dispute. In the late evening of January 18, 2003, or the

early morning of January 19, 2003, Cole and his friend, Brenton Reid Slocum, broke into a house
and stole a variety of items, including several firearms. Later in the morning of July 19, they also

robbed a convenience store at gunpoint. During the robbery, Cole pointed a gun at the store

attendant’s head and repeatedly screamed at her to open the safe, the register, and a lock box. After

obtaining what money they could, the pair fled. Police officers responding to the convenience store

robbery spotted Cole and Slocum while en route to the scene. When the pair saw the officers, they

ran and the police pursued. After being cornered in a nearby wooded area, Cole and Slocum were

apprehended and arrested. At that time, Cole was under the influence of Xanax and alcohol.

               Cole was indicted for burglary of a habitation and aggravated robbery. See id. The

State offered Cole a plea bargain of twenty years’ total imprisonment for both charges, but Cole

declined the offer. On August 6, 2003, Cole entered an open plea of guilty, and a punishment

hearing was scheduled.

               At that time, Slocum had also entered an open plea on similar charges and was

already scheduled for a separate punishment hearing. Because the State wished to conduct a joint

punishment hearing, it offered Cole and Slocum the following agreement: in exchange for their

agreeing to the joint hearing, the State agreed it would not “actively” seek a sentence of more than

twenty years’ imprisonment.

               The punishment hearing was held on October 22, 2003. Cole’s trial attorney

confirmed the existence of the agreement just before the hearing. However, in its opening statement,

the State announced that it would “be asking for a very lengthy jail sentence for each of them.”

Cole’s attorney urged the court to assess probation only. In closing arguments, the State said,

“Judge, I don’t know what’s appropriate, 40 or 50 years, 20 years. It needs to be some time. They



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need to be punished for these horrible, horrible offenses. And I hope that you will consider a lengthy

jail sentence for both of them.” Neither Cole’s attorney nor Slocums’s attorney objected. Cole was

then sentenced to thirty years’ imprisonment for aggravated robbery plus twenty years’ imprisonment

for burglary of a habitation.

               At that time, Cole’s counsel asked to make a statement for the record. He said he

believed the assistant district attorney had asked for more than twenty years’ imprisonment and that

this was contrary to Cole’s “plea agreement.” In response, the court said, “I don’t recall her [the

prosecutor] giving me any number. I think she said she was going to leave it up to me. Those

numbers I came up with. The punishment was entirely my own judgment.” This appeal followed.


                                           DISCUSSION

               Cole presents two issues on appeal. First, he argues that the State failed to honor its

“plea bargain” not to seek a sentence greater than twenty years. Second, he asserts that by failing

to object or withdraw his client’s plea of guilty, his trial counsel provided ineffective assistance. We

will address each issue in turn.


The agreement

               Under Texas law, a plea bargain is a contractual agreement consisting of three parts:

a plea of guilty, the consideration for the plea of guilty, and approval of the agreement by the court.

Ortiz v. State, 885 S.W.2d 271, 273 (Tex. App.—Corpus Christi 1994), aff’d, 993 S.W.2d 102 (Tex.

Crim. App. 1996). More specifically, a plea bargain is:




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       a preconviction bargain between the State and the accused whereby the accused
       agrees to plead guilty or nolo contendere in exchange for a reduction in the charge,
       a promise of sentencing leniency, a promise of a recommendation from the
       prosecutor to the trial judge as to punishment, or some other concession by the
       prosecutor that he will not seek to have the trial judge invoke his full, maximum
       implementation of the conviction and sentencing authority he has . . . .


Wayne v. State, 756 S.W.2d 724, 728 (Tex. Crim. App. 1988) (emphasis added) (quoting Perkins

v. Third Court of Appeals, 738 S.W.2d 276, 282 (Tex. Crim. App. 1987)).

               The court is always free to reject a plea bargain. Tex. Code Crim. Proc. Ann. art.

26.13(a)(2) (West 2004). However, the court must inquire as to the existence of any plea bargain

agreement and, if an agreement exists, advise the defendant as to whether it will follow or reject the

agreement. Id. If the court rejects the plea bargain agreement, the defendant is free to withdraw the

plea. Id. If the court accepts the plea bargain, the Fourteenth Amendment’s due process clause

requires that the promise be fulfilled if it is part of the inducement or consideration for the guilty

plea. Mabry v. Johnson, 467 U.S. 504, 509 (1984); Gibson v. State, 803 S.W.2d 316, 318 (Tex.

Crim. App. 1991). If the prosecution fails to do so, the accused is entitled to specific performance

or withdrawal of the plea, whichever is appropriate. Santobello v. New York, 404 U.S. 257, 263

(1971); Gibson, 803 S.W.2d at 318.

               In this case, no plea bargain existed. First, Cole’s plea of guilty was independent of

any agreement with the State. In fact, Cole turned down the State’s offer of twenty years’

imprisonment and did not accept the subsequent offer from the State until after his plea of guilty was

entered.   Thus, the agreement only concerned the joint sentencing hearing—it was not a

preconviction bargain pursuant to which Cole pled guilty in return for some concession from the



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prosecutor. See Wayne, 756 S.W.2d at 728 (plea bargain is preconviction bargain between State and

accused); Ortiz, 885 S.W.2d at 273 (plea of guilty and consideration for plea of guilty are both

elements of plea bargain).

               Cole, relying on Santobello and Gibson, argues that he is entitled to specific

performance or withdrawal of his plea. See Santobello, 404 U.S. at 263; Gibson, 803 S.W.2d at 318.

However, the holdings in those cases were premised on appellants having pleaded guilty in reliance

on the promises of the prosecution. See Santobello, 404 U.S. at 262-63; Gibson, 803 S.W.2d at 318.

Put simply, Santobello and Gibson involved plea bargains, whereas this case does not. Thus, we

hold that Cole was not entitled to specific performance or a withdrawal of his plea..

               In any event, even assuming that the State’s mention of “40 or 50 years” in its closing

statement violated the terms of its agreement with Cole, it was harmless to Cole. After the trial court

announced Cole’s sentence, Cole’s counsel stated his belief that the State had violated its agreement.

In response, the trial court explained that it had not been influenced by the State in determining the

sentences imposed. In fact, the trial judge indicated that he did not realize the State had mentioned

a specific sentence duration at all. The record is clear that Cole’s sentence was not affected by the

alleged breach. There was, accordingly, no violation of Cole’s “substantial rights” and any potential

error was harmless. See Tex. R. App. P. 44.2(b) (reversal for error appropriate only when substantial

right is affected); Simpson v. State, 119 S.W.3d, 262, 266 (Tex. Crim. App. 2003) (substantial right

is affected when error has substantial and injurious effect or influence in determining verdict). We

overrule Cole’s first issue.




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Ineffective assistance

               In his second issue, Cole contends that his trial counsel provided ineffective

assistance. Specifically, he argues that counsel’s failure to object to the State’s closing arguments

and failure to attempt to withdraw Cole’s plea of guilty were deficient assistance that rendered Cole’s

plea “unknowing” and “involuntary.” See Santobello, 404 U.S. at 263 (if prosecution fails to fulfill

plea agreement, accused is entitled to specific performance or withdrawal of plea, whichever is

appropriate); Gibson, 803 S.W.2d at 318 (same); Rodriguez v. State, 899 S.W.2d 658, 666 (Tex.

Crim. App. 1998) (“An essential requisite to successfully attacking a guilty plea on ineffective

assistance grounds is that appellant must show the alleged deficiencies caused his plea to be

unknowing and involuntary.”). We disagree.

               To establish an ineffective assistance of counsel claim, Cole must demonstrate that

counsel’s performance was both deficient and so serious as to prejudice the defense and deprive Cole

of a fair result. Strickland v. Washington, 466 U.S. 668, 687 (1984); Mathis v. State, 67 S.W.3d 918,

927 (Tex. Crim. App. 2002); see also Hernandez v. State, 726 S.W.2d 53, 55, 57 (Tex. Crim. App.

1986) (adopting Strickland standard to cases arising under Texas Constitution). Moreover, he must

show that there is a reasonable probability that, but for counsel’s errors, the result of the proceeding

would have been different. Strickland, 466 U.S. at 694; Hernandez, 726 S.W.2d at 55. In analyzing

counsel’s performance, our scrutiny “must be highly deferential.” Strickland, 466 U.S. at 689.

               In this case, counsel did not object to the State’s mention of “40 or 50” years during

its closing statements. He did, however, alert the trial court to his belief that the State had breached




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its agreement. Though not couched in the language of a formal objection,1 we cannot say that this

performance was so deficient as to deprive Cole of a fair result. See Strickland, 466 U.S. at 687;

Mathis, 67 S.W.3d at 927.

                As we have already discussed, the trial court made clear that it had not been

influenced by the State’s closing statements, and there is nothing in this record to suggest that it was.

There was no reasonable probability that counsel’s lack of formal objection would have changed the

outcome of the hearing. See Strickland, 466 U.S. at 694; Hernandez, 726 S.W.2d at 55.

                Cole also contends that counsel’s failure to attempt to withdraw Cole’s guilty plea

was evidence of ineffective assistance of counsel. However, his guilty plea was not contingent on

the agreement with the State. Instead, it was freely entered into by Cole. Thus, any potential breach

of the agreement by the State did not render Cole’s plea unknowing and involuntary. See Rodriguez,

899 S.W.2d at 666.

                Because there was no reasonable probability that counsel’s tardy “objection” to the

State’s potential breach of their agreement would have changed the outcome of Cole’s sentence, and

because Cole’s plea of guilty was not unknowing and involuntary, we hold that Cole has not

established his claim of ineffective assistance of counsel. We overrule Cole’s second issue.




        1
          Counsel stated the following: “May I put something on the record? . . . When [the
Assistant District Attorney] and I talked about doing this plea she told me at that time that she would
not ask for more than 20 years and I believe that she did. So, just for the record, I make that
statement.”

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                                          CONCLUSION

               We find that the agreement between the State and Cole was not a plea agreement and

that, in any event, any potential breach of that agreement was harmless. We also find that Cole failed

to establish his claim of ineffective assistance of counsel. We affirm the convictions.




                                               __________________________________________

                                               Bob Pemberton, Justice

Before Justices Kidd, B. A. Smith and Pemberton

Affirmed

Filed: December 16, 2004

Do Not Publish




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