                          NUMBER 13-13-00012-CR

                          COURT OF APPEALS

                 THIRTEENTH DISTRICT OF TEXAS

                    CORPUS CHRISTI - EDINBURG

JUSTIN COTTON,                                                         Appellant,

                                        v.

THE STATE OF TEXAS,                                                     Appellee.


                  On appeal from the 319th District Court
                        of Nueces County, Texas.


                      MEMORANDUM OPINION
            Before Justices Rodriguez, Garza, and Benavides
              Memorandum Opinion by Justice Benavides

      On January 3, 2010, appellant, Justin Cotton, pleaded guilty to burglary of a

habitation pursuant to a plea agreement in which the State recommended an eight-year

prison sentence to run concurrently with sentences imposed in other pending cases.

See TEX. PENAL CODE ANN. § 30.02(a) (West, Westlaw through 2013 3d C.S.). Cotton
raises three issues on appeal:      (1) the trial court abused its discretion by setting

punishment at twelve years’ confinement instead of the eight-year sentence offered by

the State; (2) the trial court erred by not giving the District Attorney the opportunity to

withdraw the original plea offer when the trial court placed Cotton on deferred

adjudication; and (3) Cotton’s counsel was ineffective at the initial hearing and at the

motion to revoke community supervision hearing. We affirm.

                                    I.     BACKGROUND

       On September 30, 2010, Cotton was charged with three different crimes:

burglary of a habitation, id. § 30.02(a), which carried a sentence of two to ten years;

possession of cocaine, see TEX. HEALTH & SAFETY CODE ANN. § 481.115 (West, Westlaw

through 2013 3d C.S.), which carried a sentence of two to ten years; and burglary of a

building, which carried a sentence of six months to two years in jail.    See TEX. PENAL

CODE ANN. § 30.02(a) (West, Westlaw through 2013 3d C.S.). The State recommended

an eight-year prison sentence to be served in the Institutional Division of the Texas

Department of Criminal Justice for burglary of a habitation and a twelve-month

confinement for burglary of a building.    Cotton pleaded guilty in accordance with the

agreement.    However, before the trial court accepted his plea, Cotton asked to address

the Court and requested a drug treatment program instead of prison for the possession

of cocaine charge:

              [Court]:      You understand that if I send you to drug
                            treatment, you’re probably going to be
                            incarcerated longer than if I just follow the
                            State’s recommendation in this case?

              [Cotton]:     If I need help . . . You know, I want to get some
                            help. You know, I wanted to go open plea and

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                            try to get drug treatment, but they told me that it
                            wasn’t going to be a good idea. They said
                            instead I would probably get max [twenty] years.

                            ....

              [State]:      No. That’s not what was discussed with Mr.
                            Cotton. He had a choice to do an open plea or
                            a plea bargain.

              [Defense]:    He was told he was facing [twenty] and he could
                            get it if he went open to the Court. That’s what
                            he was told.

The trial court then deferred a finding of guilt and placed Cotton on deferred adjudication

community supervision for a five-year term, explaining to him:

              [Court]:      [Y]ou understand that if you violate the terms and
                            conditions of probation the Court can revoke your
                            community supervision and find you guilty of the
                            offense of burglary of a habitation, and sentence you
                            up to [twenty] years in prison[?]

              [Cotton]:     Yes, sir.

 Cotton did not thereafter object or ask to withdraw his plea.

       After Cotton failed to successfully complete the program at the Transitional

Treatment Center in Victoria, Texas, the trial court imposed sanctions on Cotton and

ordered him to an Intermediate Sanction Facility (ISF) on December 15, 2011.       He was

released from ISF on March 7, 2012 and continued on community supervision.

       On July 16, 2012, the trial court sanctioned Cotton for a second time to a repeat

offender caseload, substance abuse intensive caseload, and outpatient intensive

caseload.   On October 4, 2012, Cotton received a violation report for failure to report to

the community supervision officer during the months of July, August, and September;

failure to report any change in his residence, job, or job status; failure to submit to the

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treatment center; and failure to report to the probation department.

         On November 30, 2012, at the hearing on the State’s motion to revoke, Cotton

argued for “a sentence on the bottom range of the sentencing guideline,” but made no

mention of the eight-year term of the original plea offer.        The State argued, without

objection, for an eleven-year sentence. The trial court then revoked Cotton’s deferred-

adjudication community supervision, found him guilty of burglary of a habitation, and

sentenced him to twelve years in the Institutional Division of the Texas Department of

Criminal Justice.    Although Cotton objected to the harshness of the sentence and asked

for credit for time served, he neither objected that the current sentence was greater than

the original plea agreement, nor asked to withdraw his guilty plea.

                                          II.       WAIVER

         By Cotton’s first issue, he argues that the trial court abused its discretion in

imposing a twelve-year sentence instead of the original plea agreement the State offered

of eight years.

A. Preservation of Error

         To preserve an error for appellate review, a party must present a timely objection

to the trial court, state the specific grounds for the objection, and obtain a ruling.   TEX. R.

APP. P. 33.1(a). As a general rule, an appellant may not complain of an error pertaining

to his sentence or punishment if he has failed to object or otherwise raise error in the trial

court.    Mercado v. State, 718 S.W.2d 291, 296 (Tex. Crim. App. 1986); see Lanum v.

State, 952 S.W.2d 36, 40 (Tex. App.—San Antonio 1997, no pet.) (determining that issue

was waived where the defendant never requested permission to withdraw his plea at the

hearing when the trial court failed to follow the probation officer’s recommended

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sentence), cf. Papillion v. State, 908 S.W.2d 621, 623 (Tex. App.—Beaumont 1995, no

pet.) (holding defendant preserved issue by timely filing a motion for new trial even though

he failed to object at sentencing or request to withdraw his plea).

B. Discussion

       Cotton never raised any complaint in the trial court regarding the court’s failure to

follow the plea bargain.     Cotton raises this complaint for the first time on appeal.

However, Cotton not only failed to object, but acquiesced to the sentence by failing to

object on the grounds that the twelve-year sentence was greater than the original eight-

year sentence.      Because Cotton failed to preserve error, we overrule his first issue.

Mercado, 718 S.W.2d at 296.

             III.    INTERVENING DEFERRAL OF ADJUDICATION ON A PLEA BARGAIN

       Cotton’s second issue is that the trial court erred by sentencing him outside the

guidelines of the articulated plea agreement.

A. Applicable Law

       “When a defendant pleads guilty pursuant to a plea bargain, the court shall inform

the defendant whether it will follow or reject such agreement in open court and before any

finding on the plea.”     Ditto v. State, 988 S.W.2d 236, 238 (Tex. Crim. App. 1999)

(emphasis in original).   Should the court reject any such agreement, the defendant shall

be permitted to withdraw his plea of guilty or nolo contendere.       See TEX. CODE CRIM.

PROC. ANN. art. 26.13(a)(2) (West, Westlaw through 2013 3d C.S.).           By imposing a

punishment that comports exactly with the terms of a plea agreement, a trial court informs

an appellant by its actions that it is following an agreement.   Ditto, 988 S.W.2d at 238.

Even if a trial court is viewed as rejecting a plea agreement by sentencing a defendant to

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deferred adjudication community supervision, a defendant could withdraw his plea at that

point. Id. at 238 & n.4.

       Here, however, the trial court never accepted the plea bargain because Cotton

requested drug treatment and deferred adjudication at the hearing instead. Since the

trial court rejected the plea bargain, it is restricted in the sentence it imposes only by the

relevant statutory limits. See TEX. PENAL CODE ANN. § 12.01 (West, Westlaw through

2013 3d C.S.); Von Schounmacher v. State, 5 S.W.3d 221, 223 (Tex. Crim. App. 1991);

Ex parte Huskins, 176 S.W.3d 818, 819 (Tex. Crim. App. 2005) (noting that even if parties

purport to have a plea bargain as to the sentence to be assessed after adjudication, the

trial court is not bound by agreement after adjudication).

       Assuming arguendo that the trial court had accepted the plea agreement, a plea

bargain will not continue to protect a defendant who receives deferred-adjudication

community supervision if the trial court proceeds to adjudication at a later date. Ex parte

Broadway, 301 S.W.3d 694, 698 n.10 (Tex. Crim. App. 2009). If a defendant violates

the terms of the deferred-adjudication community supervision, the court will no longer be

limited by the procedures of article 26.13, which require that the trial court sentence in

accordance with the plea agreement or allow the defendant to withdraw the plea. Id.

Therefore, the trial court need not assess punishment in accordance with any plea

agreement after the revocation of community supervision. Id. Thus, unless the plea

agreement simply reports the statutory limits for punishment, it will not accurately reflect

the punishment that could be assessed if guilt is adjudicated.          Id.   The only thing

“certain” is that the judge can assess any punishment statutorily permitted. Id.



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B. Discussion

        Cotton cites Perkins v. Court of Appeals and argues, “Once a trial judge approves

the plea bargain and accepts the guilty plea, the judge has a ministerial duty, mandatory

and non-discretionary duty to enforce the plea bargain it approved.” 738 S.W.2d 276,

283 (Tex. Crim. App. 1987). However, in this case, the trial court did not accept the

original plea agreement and instead ordered deferred adjudication and placed Cotton on

community supervision.      In the context of plea bargaining, the code of criminal procedure

provides that the recommendation of the prosecutor on punishment is not binding on the

court, and the trial court has discretion to follow or reject a plea bargain agreement as

long as the defendant is allowed to withdraw his guilty plea if the trial court rejects the

agreement. TEX. CODE CRIM. PROC. art. 26.13 (a)(2). By requesting a drug treatment

program and accepting deferred-adjudication community supervision instead of the

bargained-for eight-year sentence, Cotton demonstrated his choice not to withdraw his

plea.   See Ditto, 988 S.W.2d at 238 n.4. The trial court warned Cotton that a sentence

of up to twenty years confinement could be imposed on him upon violation of the terms

of deferred adjudication community supervision, and Cotton accepted the terms. With

this in mind, Cotton cannot now challenge the sentence he received after adjudication.

Mercado, 718 S.W.2d at 296. We overrule Cotton’s second issue.

                              IV.    INEFFECTIVENESS OF COUNSEL

        Cotton’s third issue is that his counsel was ineffective at the initial plea hearing

and at the motion to revoke community supervision hearing.




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A. Standard of Review

       When a defendant challenges the voluntariness of a plea based on the advice of

counsel and alleges that counsel was ineffective, the defendant has the burden to show

that (1) counsel’s performance fell below a reasonable standard of competence, and (2)

the defendant would, with a reasonable probability, have pled not guilty and insisted on

going to trial had counsel not committed the alleged errors. Ex parte Moody, 991 S.W.2d

856, 857–58) (Tex. Crim. App. 1999). In determining whether there is a deficiency, the

reviewing court should afford great deference to the trial court’s ability, indulging “a strong

presumption that counsel’s conduct falls within the wide range of reasonable professional

assistance.” Cueva v. State, 339 S.W.3d 839, 858 (Tex. App.—Corpus Christi 2011, pet.

ref’d) (citing Strickland v. Washington, 466 U.S. 668, 689 (1984)). In addition, allegations

of ineffectiveness of counsel must be firmly founded in the record. Escobar v. State, 227

S.W.3d 123, 127 (Tex. App.—Houston [1st Dist.] 2006, pet. ref’d) (citing Mallet v. State,

65 S.W.3d 59, 63 (Tex. Crim. App. 2001)).

B. Discussion

       Cotton argues that defense counsel had a duty to stop the initial plea hearing to

explain the consequences relating to deferred adjudication should Cotton violate the

terms of his community supervision.      However, the record shows the trial court warned

Cotton that upon revocation, he could be sentenced up to twenty years in prison.       Cotton

expressly accepted this possibility.   Even if Cotton’s counsel did misinform him at some

earlier stage, the misinformation was corrected in this exchange conducted in front of

Cotton’s counsel.    See Curry v. State, 861 S.W.2d 479, 483 (Tex. App.—Fort Worth

1993, pet. ref’d). Thus, Cotton demonstrated he understood the trial court rejected his

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plea agreement.

       In addition, on June 26, 2012, at the initial hearing, Cotton signed a statement in

which he attested that he understood the court’s admonishments.              The document

provided that after the hearing, it would be too late to complain about any matter that

could have been addressed at the hearing.        Under “No Binding Plea Bargain,” the

document stipulated that “although you may plea bargain with the State for an agreed

recommendation, the Court is not bound to follow any agreed recommendation you may

have with the State”; thus, the original plea agreement “does not carry forward to a

revocation or adjudication proceeding.” By signing this document, Cotton affirmed that

he personally read the documents and fully understood the matters contained therein.

Further, the document set forth that if the court revoked Cotton’s community supervision,

the court could set punishment up to the maximum term provided by law for the offense,

even though counsel may have recommended a lesser sentence.           In other words, by

rejecting the agreement, the court was free to set whatever punishment it deemed

appropriate in Cotton’s case, regardless of the recommendation of counsel. Again, on

November 30, 2012, Cotton signed that he understood these matters.            In light of the

foregoing, Cotton has failed to demonstrate how, if at all, his attorney’s performance was

deficient in this regard. Curry, 861 S.W.2d at 483.   He has also failed to show how his

attorney’s performance would have affected the outcome of his case.    Id.    Cotton’s third

issue is overruled.




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                                     V.        CONCLUSION

       We affirm the trial court’s judgment.



                                                        __________________________
                                                        GINA M. BENAVIDES,
                                                        Justice


Do not publish.
TEX. R. APP. P. 47.2 (b).

Delivered and filed the
24th day of July, 2014.




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