      TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN



                                        NO. 03-01-00306-CR




                                  Otis Derrick Taplin, Appellant

                                                  v.

                                   The State of Texas, Appellee



      FROM THE DISTRICT COURT OF BELL COUNTY, 264TH JUDICIAL DISTRICT
          NO. 51,432, HONORABLE MARTHA J. TRUDO, JUDGE PRESIDING




                Appellant Otis Derrick Taplin pleaded guilty to possessing more than four grams of

cocaine with intent to deliver. See Tex. Health & Safety Code Ann. § 481.112(a), (d) (West Supp.

2001). The district court assessed punishment at imprisonment for thirty years. Appellant’s only

point of error is that the court should have granted his request to withdraw the guilty plea. The State

urges that we do not have jurisdiction to consider this contention. We conclude that we do have

jurisdiction and that the district court did not abuse its discretion by refusing to permit appellant to

withdraw his plea. Therefore, we will affirm the conviction.


Jurisdiction

                The State argues that appellant’s general notice of appeal does not invoke this Court’s

jurisdiction under the terms of Texas Rule of Appellate Procedure 25.2(b)(3). Under this rule, a

defendant who pleads guilty to a felony has a limited right to appeal if “the punishment assessed did
not exceed the punishment recommended by the prosecutor and agreed to by the defendant.” Tex.

R. App. P. 25.2(b)(3). If the notice of appeal in such a case does not state that the appeal falls within

one of three permitted categories, it does not invoke the appellate court’s jurisdiction. Whitt v. State,

45 S.W.3d 274, 275 (Tex. App.—Austin 2001, no pet.); see also Cooper v. State, 45 S.W.3d 77, 79

(Tex. Crim. App. 2001) (rule 25.2(b) limits every appeal in plea bargain, felony case).

                The clerk’s record contains a “disclosure of plea recommendation” reciting that “no

plea bargain agreement has been reached between the Defendant and the State.” The record

otherwise reflects, however, that the State agreed to abandon three indictment paragraphs alleging

previous felony convictions for enhancement of punishment and to permit appellant to enter an

“open” plea to the unenhanced first-degree felony. Considering the record as a whole, we believe that

there was a plea bargain, but that it did not invoke rule 25.2(b)(3).

                Rule 25.2(b)(3) does not limit the right to appeal whenever there is a bargained guilty

plea, but only when “the punishment assessed does not exceed the punishment recommended by the

prosecutor and agreed to by the defendant.” In this cause, the parties did not agree to a specific

punishment recommendation or even to a punishment “cap” below which the court could exercise

its discretion in assessing punishment. See Delatorre v. State, 957 S.W.2d 145, 148-49 (Tex.

App.—Austin 1997, pet. ref’d). Even if the State’s agreement to abandon the enhancement

paragraphs is construed as a punishment recommendation, the agreement was relevant only to

appellant’s minimum punishment while rule 25.2(b)(3) clearly contemplates an agreement limiting the

defendant’s maximum punishment. Had the State proved the enhancement allegations, the minimum

punishment for this offense would have increased from five to twenty-five years in prison but the



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maximum possible punishment would have remained the same. Compare Tex. Pen. Code Ann. §

12.32(a) (West 1994) with id. § 12.42(d) (West Supp. 2001). Because there was no agreed

punishment recommendation within the meaning of rule 25.2(b)(3), appellant’s general notice of

appeal was sufficient to invoke our jurisdiction.


Withdrawal of guilty plea

               A defendant may withdraw his guilty plea as a matter of right before judgment is

pronounced or the case is taken under advisement by the trial court. Jackson v. State, 590 S.W.2d

514, 515 (Tex. Crim. App. 1979). After judgment or if the case is under advisement, withdrawal of

the guilty plea is within the sound discretion of the court. Id. In this cause, appellant entered his

guilty plea on February 26, 2001. The court accepted the plea, ordered a presentence report, and

reset the cause for a punishment hearing. That hearing was held on April 30. During the State’s

closing argument, appellant asked to withdraw his plea. Under the circumstances, the withdrawal of

appellant’s plea was discretionary with the court. DeVary v. State, 615 S.W.2d 739, 740 (Tex. Crim.

App. 1981).

               Appellant claimed that he pleaded guilty with the understanding that he was accused

of merely possessing cocaine, rather than possessing it with intent to deliver. The reporter’s record

from the February 26 proceeding contradicts this assertion. Before appellant pleaded guilty, the court

told him that he was accused of possessing cocaine with intent to deliver and advised him of the

correct range of punishment. Appellant stated that he understood. Given this record, the district

court did not abuse its discretion by refusing appellant’s request to withdraw his guilty plea.




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              The point of error is overruled and the judgment of conviction is affirmed.




                                             __________________________________________

                                             Mack Kidd, Justice

Before Justices Kidd, Yeakel and Patterson

Affirmed

Filed: November 15, 2001

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