            IN THE COURT OF CRIMINAL APPEALS
                        OF TEXAS

                                 AP-76,059 & AP-76,060



                    EX PARTE TERRENCE LADON BROADWAY



                    On Applications for Writs of Habeas Corpus from
                                     Harris County



       W OMACK, J., filed a concurring opinion, in which J OHNSON, J., joined .


       I join the Court’s opinion, and I file this opinion only to comment on its use of the

term “plea-bargain case.”

       As the Court’s opinion points out, ante at note 3, we have given that term a special

definition in Rule of Appellate Procedure 25.2(a)(2): “In a plea bargain case – that is, a

case in which a defendant’s plea was guilty or nolo contendere and the punishment did

not exceed the punishment recommended by the prosecutor and agreed to by the defen-

dant ….” (In such a case a defendant’s right to appeal is limited to “only (A) those

matters that were raised by written motion filed and ruled on before trial, or (B) after
                                                                                   (Broadway - 2)

getting the trial court’s permission to appeal.”) This case was not a plea-bargain case

under that definition, and Rule 25.2’s restriction on appeal did not apply.

       But plea bargains, in the common meaning of the term, may be of many other

kinds that do not involve agreed recommendations of punishment by the prosecutor. The

most frequent may be a defendant’s agreement to plead guilty in one case (without an

agreement on punishment) in return for the dismissal of, or an agreement not to bring,

prosecutions for other offenses. Other bargains may affect the punishment without

coming within the Rule 25.2 definition of “plea bargain case.” For example, the parties

may agree that, in a case in which there might be an issue of a deadly weapon’s being

used (which would affect a defendant’s eligibility for parole; see section 508.145(d) of

the Government Code), the judgment will not include an affirmative finding of such use.

       Today’s decision insures that such plea-bargain agreements, even though they do

not come within the definition in Rule 25.2, must be considered to have “constituted a

bargain,” as we said (ante, at 6). And, as we hold today, a defendant may voluntarily

make such an agreement. It seems clear to me, although today’s case does not involve the

issue, that the State would be required to perform its part of the agreement. Issues of the

trial court’s authority to reject such agreements surely will arise, and the Rule 25.2 cases

will provide guidance.


En banc.
Filed December 16, 2009.
Publish.
