                                      In The
                                 Court of Appeals
                        Seventh District of Texas at Amarillo

                                        No. 07-15-00320-CR


                             JOSE ROBERT PEREZ, APPELLANT

                                                 V.

                              THE STATE OF TEXAS, APPELLEE

                             On Appeal from the 64th District Court
                                    Castro County, Texas
            Trial Court No. A3091-0606, Honorable Robert W. Kinkaid, Jr., Presiding

                                          June 30, 2016

                                MEMORANDUM OPINION
                   Before QUINN, C.J., and CAMPBELL and HANCOCK, JJ.


      Appellant, Jose Perez, entered a plea of guilty, pursuant to a plea agreement, to

the offense of indecency with a child.1 Pursuant to the plea agreement, appellant was

placed on deferred adjudication community supervision for a period of ten years on

February 22, 2007. Subsequently, on November 20, 2014, the State filed a motion to

adjudicate appellant guilty.       The trial court conducted a hearing on the motion to

adjudicate on June 25, 2015. After receiving appellant’s plea of true, the trial court

      1
          See TEX. PENAL CODE ANN. § 21.11(a)(1) (West 2011).
adjudicated appellant guilty. Thereafter, the trial court heard the punishment evidence

and sentenced appellant to ten years in the Institutional Division of the Texas

Department of Criminal Justice (ID-TDCJ). Appellant filed a motion for new trial. After a

hearing on the motion for new trial, the trial court overruled the same. This appeal

followed.


        Appellant brings a single issue which contains a number of different sub-issues.2

Appellant contends that the trial court abused its discretion in the following particulars:

(1) by refusing to honor the plea-bargained agreement that allegedly existed between

appellant and the State; (2) by refusing a continuance request; and (3) by denying

appellant’s motion for new trial. We disagree with appellant and will affirm.


                               Factual and Procedural Background


        The facts of this case do not appear to be in dispute and only those relevant to

our opinion will be recounted. No one contends that the State and appellant had not

reached an agreement regarding disposition of the motion to proceed with adjudication

previously filed by the State.        Under the terms of the agreement, appellant was to

complete a new sex-offender evaluation and then successfully complete any counseling

sessions required by the evaluation. Further, appellant was to complete an additional

40 hours of community supervision.              According to the record, this agreement was

reached on June 24, 2015, the day before the hearing on the motion to adjudicate. The

trial court refused to sign off on the agreement and, instead, conducted a hearing on the

State’s motion to adjudicate.

        2
          While we could declare that appellant’s issue is multifarious and treat it accordingly, we will
address the individual issues contained within appellant’s single issue.

                                                   2
          Appellant persisted in entering his plea of true to allegations of violations

contained in paragraphs 2A and 2B of the motion to proceed. After being admonished

by the trial court, appellant entered his pleas of true.     The trial court subsequently

accepted the pleas of true to paragraphs 2A and 2B and not true to paragraphs 1 and 3

of the motion to proceed.


          Thereafter, the trial court heard the evidence regarding the motion to proceed.

After hearing the evidence, the trial court found that the allegations that appellant had

violated conditions 2A, 2B, and 3 to be true. The trial court adjudicated appellant guilty

of the offense of indecency with a child and proceeded to the question of punishment.


          After conducting the punishment hearing, the trial court assessed appellant’s

punishment at ten years’ incarceration in the ID-TDCJ.           Appellant has appealed,

contending that the trial court abused its discretion in a number of particulars. We will

affirm.


                                     Standard of Review


          Appellant contends that each of the matters addressed in its brief require that a

reviewing court use an abuse of discretion standard of review.         To the extent that

appellant may appeal the refusal of a trial court to enter an agreed order, if the record

demonstrates that the trial court had, in fact, accepted the plea agreement, the

appellant would be entitled to specific performance of the plea agreement. See Wright

v. State, 158 S.W.3d 590, 594 (Tex. App.—San Antonio 2005, pet. ref’d).


          As to appellant’s contention regarding error for improperly refusing the request

for a continuance, the issue is governed by the abuse of discretion standard of review.

                                              3
See Gonzales v. State, 304 S.W.3d 838, 843-44 (Tex. Crim. App. 2010). The same is

true for an appeal from the denial of a motion for new trial. See Holden v. State, 201

S.W.3d 761, 763 (Tex. Crim. App. 2006).


                        Analysis of Refusal to Enter Plea Agreement


       In reviewing the record before the Court, we note that, during the admonishments

given by the trial court, prior to accepting appellant’s plea of true to allegations 2A and

2B and plea of not true to allegations 1 and 3, the trial court discussed the plea

agreement entered into between appellant and the State. Specifically, the trial court

admonished appellant that “this Court is not bound by any agreement or any

recommendations as to the result of this proceeding made and entered into between

you, your attorney[,] and the State’s attorney.” The trial court then asked appellant if he

understood the admonishments and whether appellant had any questions about

anything. Appellant responded, “No, sir, not at this time.” The trial court then asked

appellant if it was still his desire to plead true to the allegations 2A and 2B. Appellant

answered, “Yes, sir.”


       Thus, it is apparent from the record that appellant entered his plea of true to the

allegations in paragraphs 2A and 2B with the knowledge that the trial court would not be

bound by any plea agreement between appellant and the State. A trial court’s decision

to accept or reject a plea bargain belongs to the trial judge alone. See Gaal v. State,

332 S.W.3d 448, 457 (Tex. Crim. App. 2011) (citing Morano v. State, 572 S.W.2d 550,

551 (Tex. Crim. App. [Panel Op.] 1978)).




                                             4
       Appellant seems to contend that, since he is already on deferred adjudication

community supervision, he is not trying to bind the trial court to a specific punishment by

requiring it to accept the proposed plea agreement. As appellant’s theory goes, this

would be so because the plea agreement simply continues him on deferred

adjudication. Appellant cites the aforementioned Morano case for the proposition that

the State and defendant have no authority to bind the trial court to a fixed punishment in

support of his theory that they are not trying to bind the trial court to a particular

punishment. See Morano, 572 S.W.2d at 550–51. What appellant’s analysis overlooks

is the procedural aspect of his situation.       There was pending an application to

adjudicate appellant guilty and the proposed plea bargain struck at the very essence of

the procedure without the trial court’s consent, i.e., the adjudication of appellant as

guilty of the underlying offense. Thus, a closer reading of the Morano opinion belies

appellant’s position. The appellant in Morano espoused the theory that, since article

26.13 of the Texas Code of Criminal Procedure sanctions plea bargains, the Texas

Court of Criminal Appeals should hold all defendants charged with felonies have an

absolute right to enter into plea bargains. See id. The Morano court answered that

argument by pointing out that such a position is not sound because to allow such an

argument would be to sanction an attendant argument that every defendant must enter

a plea of guilty and enter into a plea bargain. Id. As the court explained, a trial court

may refuse to allow plea bargaining and the trial court may refuse to allow a prosecutor

to offer recommendations concerning the punishment to be assessed.               Id.   The

defendant does not have an absolute right to enter into a plea bargain. Id.




                                            5
       Appellant then cites the Court to Wright v. State, 158 S.W.3d 590, 595 (Tex.

App.—San Antonio 2005, pet. ref’d), for the proposition that there are limits to the trial

court’s discretion to accept or reject a plea bargain. The Wright opinion did, in fact,

state there were limits in that particular case because of the facts. The original trial

judge accepted the plea bargain and stated it would follow the bargain; however, the

trial judge that heard the punishment evidence refused to follow the plea bargain. See

id. at 594. Under these facts, the Fourth Court of Appeals held that the second trial

judge did not have the authority to sua sponte reject the plea bargain. See id. The

facts involved in Wright are significantly different than those we see before us and,

accordingly, Wright has no binding authority on the issue before us.


       Appellant next contends that appellant and the State should have the authority to

bind the trial court to a continuation of a prior court-approved agreement. The prior

court-approved agreement at issue was appellant’s deferred adjudication community

supervision.    Appellant cites the Court to no cases that support this beginning

proposition, and, we hasten to add, we have found none. Appellant’s contention is only

a variation of the contention addressed above and is controlled by the same legal

principal, that is, the decision to accept or reject a plea bargain belongs to the trial court.

See Gaal, 332 S.W.3d at 457.         Because we have so found, we need not address

appellant’s related argument of detrimental reliance. Appellant could not have relied on

the plea bargain to his detriment when the trial court advised appellant before he

entered his plea of true that the trial court was not bound to accept a plea bargain.


       At the end of the day, when we review the facts before us and the applicable law,

it is clear to the Court that the trial court properly advised appellant of its intent not to be

                                               6
bound by the plea bargain. Yet, the record supports the proposition that appellant went

ahead and entered his plea of true to two of the allegations pending. Accordingly, the

trial court did not err in refusing to follow the plea bargain. Appellant’s contention to the

contrary is overruled.


                                  Motion for Continuance


       Appellant’s next contention is that the trial court erred by not granting appellant’s

motion for continuance, allegedly made at some point before the trial court accepted

appellant’s plea of true. Appellant’s position is based upon the unsworn declaration of

trial counsel that was presented at the hearing on the motion for new trial. The unsworn

declaration was not admitted into evidence at the motion for new trial hearing. It was

included as an offer of proof for appellate purposes. The record of the proceeding on

the motion to adjudicate contains no motion for continuance made by appellant.

Accordingly, nothing is preserved for appeal. See TEX. R. APP. P. 33.1(a)(1).


       Even if we were to accept the unsworn statement as proffered at the motion for

new trial hearing, nothing is preserved for appeal. The record reflects that the motion

for continuance to which appellant refers was made by the State because of the

absence of one of their witnesses. The trial court denied the motion by order signed on

June 22, 2015. Appellant’s trial counsel simply agreed to the motion and did not make

any motion for continuance on behalf of the appellant. Again, nothing is preserved for

appeal. See TEX. R. APP. P. 33.1(a)(1).




                                              7
                               Denial of Motion for New Trial


         Appellant’s final contention is that the trial court abused its discretion by

overruling appellant’s motion for new trial. The trial court is the finder of fact on a

motion for new trial. See Odelugo v. State, 443 S.W.3d 131, 138 (Tex. Crim. App.

2014). We view the trial court’s ruling on the motion for new trial in the light most

favorable to the trial court’s ruling. See id. A trial court abuses its discretion by denying

a motion for new trial when the trial court’s decision was clearly erroneous and arbitrary.

See id. at 137.


         In the case before the Court, appellant contends that the trial court abused its

discretion because the trial court should have followed the plea bargain to continue

appellant on community supervision. Such an argument simply ignores the fact that the

trial court acted within its discretion by not following the plea bargain entered into

between the State and appellant. See Gaal, 332 S.W.3d at 457 (citing Morano, 572

S.W.2d at 551).      Since the trial court had the discretion to reject the plea bargain

agreement, it did not abuse its discretion in denying appellant’s motion for new trial.

See Odelugo. 443 S.W.3d at 137. Appellant’s contention to the contrary is overruled.


                                        Conclusion


         Having overruled all of appellant’s contentions, we affirm the judgment of the

trial.


                                          Mackey K. Hancock
                                              Justice


Do not publish.

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