Perez v. State, 13-98-378-CR

• Decision Date: 10 August 2000
• Docket Number: No. 13-98-366-CR,No. 13-98-378-CR,13-98-378-CR,13-98-366-CR
• Citation: 28 S.W.3d 627
• Parties: (Tex.App.-Corpus Christi 2000) JOHNNY PEREZ, Appellant, v. THE STATE OF TEXAS, Appellee
• Court: Texas Court of Appeals

Page 627

28 S.W.3d 627 (Tex.App.-Corpus Christi 2000)

JOHNNY PEREZ, Appellant, v. THE STATE OF TEXAS, Appellee.

No. 13-98-378-CR

No. 13-98-366-CR

COURT OF APPEALS THIRTEENTH DISTRICT OF TEXAS, CORPUS CHRISTI

August 10, 2000

On appeal from the 156th Judicial District Court of Bee County, Texas. [Copyrighted Material Omitted]

Before Justices Hinojosa, Yanez, and Rodriguez.

OPINION

Opinion by Justice Yanez.

In this consolidated appeal,¹ appellant Johnny Perez challenges the trial court's denial of motions to withdraw his plea of guilty to a murder charge and plea of "true" to a motion to revoke deferred adjudication community supervision, based on his allegation that the State breached its plea agreement. We affirm the trial court's judgment in both causes.

In 1993, Perez pleaded guilty to burglary of a habitation.² The trial court accepted his open plea of guilty, deferred adjudication of guilt, and placed him on ten years deferred-adjudication community supervision with a fine of $1,000. The trial court amended the conditions of Perez's community supervision several times over the next several years.³

In 1997, Perez was arrested for the offense of murder.⁴ On April 2, 1998, a jury found him guilty and the trial court sentenced him to fifty years in the Institutional Division of the Texas Department of Criminal Justice. Thereafter, pursuant to a plea agreement, Perez agreed to plead guilty, waive his right to appeal, and testify in the murder trial of his co-defendant, Juan Casas, in exchange for a reduction of his murder sentence from fifty to twenty-five years. In early May, Perez testified in the murder trial of Juan Casas as agreed. Following the granting of Perez's unopposed motion for new trial, the parties filed a plea agreement on May 21, 1998. The agreement reflected the terms agreed to by the parties, and in accordance with the agreement, the trial court sentenced Perez to twenty-five years. The plea agreement is silent as to any disposition of the burglary offense.

On April 2, 1998, the State filed a motion to revoke Perez's community supervision in the burglary charge, alleging he had violated terms of his community supervision by committing murder. On May 28, 1998, at the revocation hearing, Perez pleaded "true" to the allegation. The State recommended revocation of Perez's community supervision, adjudication of guilt, and a sentence of twenty years, to be served concurrently with the twenty-five-year murder sentence. The trial court,⁵ however, declined to follow the State's recommendation, and imposed a twenty-five-year sentence for the burglary offense, to be served consecutively with the murder sentence.

Perez filed a motion to withdraw his guilty plea in the murder case and the trial court held a hearing on June 11, 1998. Perez's counsel testified that he represented Perez on the murder charge, but not on the burglary charge, and that his plea negotiations with the State on Perez's behalf did not involve the burglary offense. He testified that Perez had, however, relied on the State's agreement to a twenty-five-year sentence in exchange for his testimony, and that the twenty-five-year "stacked" sentence imposed by a different judge in the burglary case was unfair. The State noted it had recommended a twenty-year concurrent sentence on adjudication for the burglary offense, and argued that it had not violated the agreement. The State argued that the judge's decision to impose a longer "stacked" sentence in the burglary case was "not within [its] control." At the conclusion of the hearing, the trial court overruled Perez's motion to withdraw his plea of guilty to murder.

A week later, on June 18, 1998, a hearing was held on Perez's motion for reconsideration of sentence in the burglary case. Perez's counsel (in the murder case) appeared and argued that his client was entitled to a concurrent sentence, based on his agreement with the State in the murder case, and that imposition of the "stacked" sentence "breached" the agreement. After determining that the plea agreement in the murder case contains no provision or reference to the motion to revoke in the burglary case, the court denied Perez's motion for reconsideration.

Perez contends the trial courts erred in: (1) denying his motions to withdraw his pleas because the pleas were involuntary due to breach of the agreement; (2) denying his motions for specific performance of the plea agreement; and (3) imposing a "stacked" sentence in the burglary case, based on the court's opinion that his sentence in the murder case was too lenient compared to the sentence his co-defendant received. He also claims the errors were "made more egregious" by the fact that the prosecutor in the burglary case had earlier represented Perez in that case.⁶ Finally, he claims error because of a May 6, 1998 change in district court policy (after Perez had testified), which stated that in revocation of community supervision cases, the courts would not be bound by "plea-bargains," and would not any longer allow a plea-bargaining defendant to withdraw a plea of "true" if the court failed to follow such a "bargain."

The State contends we do not have jurisdiction to address this appeal under Texas Rule of Appellate Procedure 25.2(b)(3). The State asserts Perez's general notice of appeal is insufficient because it fails to specify that the appeal is for a jurisdictional defect, that the substance of the appeal was raised by written motion and ruled on before trial, or that the trial court granted permission to appeal. See Tex. R. App. P. 25.2(b)(3).

Cause No. 13098-378-CR: Plea of Guilty to Murder

We begin by addressing the State's argument that we do not have jurisdiction to address the denial of Perez's motion to withdraw his plea of guilty in the murder case.

Perez's motion to withdraw his plea of guilty, denied by the trial court, stated, in relevant part:

As to the Murder plea of guilty, the defendant did not knowingly and understandingly enter his plea of guilty. He had been promised by the State, and assured by the undersigned attorney, at the time of his plea, that the District Attorney would honor his promises to the accused, and that the District Attorney or his assistants would make sure Defendant's sentences did not exceed twenty-five (25) years.

We construe Perez's claim to be that his guilty plea to murder was involuntary because the state breached its plea agreement.

Rule 25.2(b)(3) provides that a defendant who pleads guilty or nolo contendere pursuant to a plea agreement must provide notice to appeal the judgment. To appeal, a defendant is required to specify in his notice of appeal that (1) the appeal is for a jurisdictional defect; (2) the substance of the appeal was raised by written motion and ruled on before trial; or (3) the trial court granted permission to appeal. See Tex. R. App. P. 25.2(b)(3) (formerly rule 40(b)(1)).

Perez's notices of appeal⁷ do not contain the extra-notice requirements of rule 25.2(b)3). Thus, he filed only general notices of appeal. See Davis v. State, 870 S.W.2d 43, 46 (Tex. Crim. App. 1994).

In interpreting former rule 40(b)(1), the court of criminal appeals has held that an appellant has the substantive right to appeal the voluntariness of his plea. See Flowers v. State, 935 S.W.2d 131, 134 (Tex. Crim. App. 1996). There is a split of authority among courts of appeals on whether rule 25.2(b)(3) partially overruled Flowers. See, e.g., Davis v. State, 7 S.W.3d 695, 696 (Tex. App.--Houston [1st Dist. 1999, pet. ref'd) (holding voluntariness claims permissible through general notice of appeal); Moore v. State, 4 S.W.3d 269, 272 (Tex. App.--Houston [14th Dist.] 1999, no pet.) (same); Lowe v. State, 997 S.W.2d 670, 672 n.2 (Tex. App.--Dallas 1999, no pet.) (same); Minix v. State, 990 S.W.2d 922, 923 (Tex. App.--Beaumont 1999, pet. ref'd) (same); Price v. State, 989 S.W.2d 435, 437-38 (Tex. App.--El Paso 1999, pet. ref'd) (same); Hernandez v. State, 986 S.W.2d 817, 820 (Tex. App.--Austin 1999, pet. ref'd) (same); Luna v. State, 985 S.W.2d 128, 129-30 (Tex. App.--San Antonio 1998, pet. ref'd) (same); Vidaurri v. State, 981 S.W.2d 478, 479 (Tex. App.-Amarillo 1998, pet. granted) (same); Session v. State, 978 S.W.2d 289, 291-92 (Tex. App.--Texarkana 1998, no pet.) (same); Johnson v. State, 978 S.W.2d 744, 745-46 (Tex. App.--Eastland 1998, no pet.) (same).

By contrast, the Fort Worth and Waco courts have held that rule 25.2(b)(3) overrules Flowers. See Villanueva v. State, 977 S.W.2d 693, 695-96 (Tex. App.--Fort Worth 1998, no pet.); Long v. State, 980 S.W.2d 878, 878 (Tex. App.--Fort Worth 1998, no pet.); Elizondo v. State, 979 S.W.2d 823, 824 (Tex. App.--Waco 1998, no pet.).

We believe the majority of the courts of appeals have correctly permitted voluntariness challenges through general notices of appeal. We hold that voluntariness of a plea may be raised by general notice of appeal and thus conclude that we have jurisdiction to address the merits of Perez's voluntariness claim regarding his guilty plea.

Although we have jurisdiction to address Perez's complaint, we find it is without merit. Perez argues his plea of guilty was involuntary because the State "breached" its plea agreement. Similarly, he argues he is entitled to specific performance of the "breached" plea agreement.

The plea agreement provides for a twenty-five-year sentence in exchange for Perez's testimony. Perez received a sentence of twenty-five years in accordance with the agreement. It is undisputed that the agreement makes no reference to the motion to revoke in the burglary charge. The agreement contains a section designated "disposition to run concurrent with cause #(s)_____;" the space next to the designation is blank. Moreover, Perez's counsel admits he "never negotiated with [the State] in any way" about the burglary case. Perez offers no evidence that the agreement was intended to include the burglary offense. Perez's own...