Perez v. State

• Decision Date: 04 March 2004
• Docket Number: No. 13-03-331-CR.,13-03-331-CR.
• Citation: 129 S.W.3d 282
• Parties: Eddie PEREZ, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Appeals

129 S.W.3d 282

Eddie PEREZ, Appellant, v. The STATE of Texas, Appellee.

No. 13-03-331-CR.

Court of Appeals of Texas, Corpus Christi-Edinburg.

March 4, 2004.

Alfredo Padilla, Brownsville, for Appellant.

Yolanda De Leon, Dist. Atty., Brownsville, for State.

Before Justices HINOJOSA, YAÑEZ, and CASTILLO.

OPINION

Opinion by Justice CASTILLO.

Appellant Eddie Perez appeals his conviction for possession of less than one gram of cocaine.¹ Perez pleaded no contest pursuant to an agreement that the State was "not opposed to community supervision" and would "remain silent on [the] issue of deferred." After a pre-sentence investigation following Perez's plea, the trial court sentenced him to two years confinement in the State Jail Division of the Texas Department of Criminal Justice. We conclude that Perez's appeal is frivolous and without merit. We affirm.

I. BACKGROUND

The trial court has certified that this is not a plea-bargain case, and Perez has the right to appeal. See Tex.R.App. P. 25.2(a)(2). Perez's appellate counsel filed a brief in which counsel concludes that the appeal is frivolous. See Anders v. California, 386 U.S. 738, 744-45, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967). Counsel has provided a letter by which he transmitted a copy of the brief to Perez and informed him that: (1) counsel reviewed the record for reversible error; (2) he researched the law applicable to the facts and issues in the appeal; (3) in his opinion, no reversible error appears, and the appeal is without merit; and (4) Perez has the right to review the record and file a pro se brief on his own behalf. See id.; see also High v. State, 573 S.W.2d 807, 813 (Tex.Crim.App. [Panel Op.] 1978). More than thirty days have passed since the date of counsel's letter. Perez has not filed a pro se brief.

II. DISPOSITION

A. Anders Brief

An Anders brief must provide references to both legal precedent and pages in the record to demonstrate why there are no arguable grounds to be advanced. High, 573 S.W.2d at 812; Gearhart v. State, 122 S.W.3d 459, at 465-467 (Tex.App.-Corpus Christi 2003, no pet. h.). Counsel's brief does not advance any arguable grounds of error, but does contain a professional evaluation of the record demonstrating why there are no arguable grounds to be advanced. See Currie v. State, 516 S.W.2d 684, 684 (Tex.Crim.App. 1974); see also Gearhart, 122 S.W.3d at 465-467. With relevant citation to legal precedent and the record, counsel concludes that the trial court fulfilled the statutory requirements for admonishments on entry of Perez's no-contest plea to the felony indictment: (1) as to the range of punishment; (2) of the consequences of the plea; and (3) that the trial court did not have to accept any plea bargain. Counsel adds that the trial court thoroughly admonished Perez before the no-contest plea. Counsel also concludes there is no evidence in the record suggesting that Perez was not competent to enter his plea or that the plea was involuntary. Counsel notes that the sentence assessed was within the range allowed by law. He concludes that the trial court did not abuse its discretion when it sentenced Perez to two years confinement in state jail.

Arguable grounds of error should be advanced by counsel as required by Anders, if there are any. See Currie, 516 S.W.2d at 684; see also Gearhart, 122 S.W.3d at 466-67. However, we do not interpret Anders as requiring appointed counsel to make arguments counsel would not consider worthy of inclusion in a brief for a paying client or to urge reversal if, in fact, counsel finds no arguable issue to appeal. See Currie, 516 S.W.2d at 684; see also Gearhart, 122 S.W.3d at 466-67. We hold that counsel's brief is not the "conclusory statement" decried by Anders. See Currie, 516 S.W.2d at 684; see also Gearhart, 122 S.W.3d at 466-67.

B. Independent Review of the Record

This is an Anders case. We independently review the record for error. See Penson v. Ohio, 488 U.S. 75, 80, 109 S.Ct. 346, 102 L.Ed.2d 300 (1988); see also Gearhart, 122 S.W.3d at 468. The record reflects that the trial court administered the proper admonishments to Perez. Perez stated that he understood the admonishments. He acknowledged that he knowingly and voluntarily entered the no-contest plea. After adjournment for several weeks pending preparation of a presentence investigation report, the following proceedings took place on April 7, 2003:

THE COURT: Mr. Perez, you appeared back on the 17th of March. At that time you entered your plea to the charges of the indictment.

Are you ready at this time, to receive your sentence?

PEREZ: Yes, sir.

THE COURT: Anything further from the State?

[PROSECUTOR]: Nothing further from the State.

THE COURT: Anything further from the defense?

[DEFENSE COUNSEL]: Your Honor, based on the PSI, it calls for probation. He has no prior felonies. And my understanding is, the defendant does have a previous felony conviction out of the state of Florida. He tells me that he has successfully completed his probation in Florida. He figured it wasn't going to affect this case—or effect this case.

THE COURT: Well, it does, doesn't it?

[DEFENSE COUNSEL]: Yes, sir.

THE COURT: Mr. Perez, I am not going to allow you to be placed on probation. You've already been through that process once before. You are not going to be allowed to go through that process once again.

I'm going to adjudicate you guilty. I am going to order that you be sentenced to the state jail for a period of two years.

1. The Plea Agreement

"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 defendant—a defendant may appeal only: (A) those matters that were raised by written motion filed and ruled on before trial; or (B) after getting the trial court's permission to appeal." See Tex.R.App. P. 25.2(a)(2). "The plain import of [former rule 25.2(b)(3) ] is that appeals from pleabargain cases are limited to the situations set forth in the rule." Woods v. State, 108 S.W.3d 314, 315 (Tex.Crim.App.2003).² Therefore, before undertaking our independent review of the record, we first determine if the agreement in this case incorporated a "punishment recommended by the prosecutor and agreed to by the defendant." See Tex.R.App. P. 25.2(a)(2).

An agreement between the State and an accused may not necessarily include as one of its terms an agreed punishment recommendation. Shankle v. State, 119 S.W.3d 808, 813 (Tex.Crim.App.2003); Ramirez v. State, 89 S.W.3d 222, 225 n. 4 (Tex.App.-Corpus Christi 2002, no pet.). Any concession by the State in exchange for the accused's plea creates a plea bargain. Ramirez, 89 S.W.3d at 225 n. 4. Only a plea bargain that incorporates an agreed recommendation as to punishment and is accepted by the court, however, triggers restrictions on our review power contained in rule 25.2(a)(2) of the rules of appellate procedure. Id.; see Tex.R.App. P. 25.2(a)(2).

The court of criminal appeals has instructed us that there are two main categories of plea bargains that affect punishment: (1) sentence-bargaining; and (2) charge-bargaining. Shankle, 119 S.W.3d at 813. A recommendation for deferred-adjudication probation is a form of sentence-bargaining. Id. In addition to the sentence-bargaining that occurs in the more familiar form of an agreement to a finite or definite punishment, an agreement to a punishment cap also is an "agreed recommendation as to punishment." Threadgill v. State, 120 S.W.3d 871, 872 (Tex.App.-Houston [1st Dist.] 2003, no pet.). Similarly, an agreement to dismiss a pending charge, or not to bring an available charge, is charge-bargaining that effectively puts a cap on punishment at the maximum sentence for the charge that is not dismissed. Shankle, 119 S.W.3d at 813.

The record shows that the plea agreement here did not involve any type of sentence-bargaining or charge-bargaining that affected Perez's punishment. See id. The State merely agreed not to oppose community supervision and to remain silent on the issue of deferred adjudication. The State did not agree to recommend deferred adjudication, any finite sentence, or a sentencing cap, either in actuality or in practical effect. We conclude that Perez pleaded no contest without the benefit of an agreed sentencing recommendation. See id.; cf. Ditto v. State, 988 S.W.2d 236, 239 (Tex.Crim.App.1999) ("We hold that a plea agreement in which the State makes no recommendation on probation or does not address it at all, but sets a cap on punishment, is satisfied when the trial court assesses as punishment deferred adjudication probation within the terms of the cap."). We next determine if Perez otherwise waived any issues when he pleaded no contest to the charged offense. See Jordan v. State, 112 S.W.3d 345, 347 (Tex.App.-Corpus Christi 2003, no pet.) (citing Ramirez, 89 S.W.3d at 228).

2. Pre-Sentencing Waiver of the Right to Appeal

Our independent review of the record reveals that the clerk's record contains Perez's signed "Written Waiver and Consent to Stipulation of Testimony, Waiver of Jury, and Plea of No Contest." The written waiver contains the following waiver of Perez's right to appeal:

And I understand that the Court is not bound to accept a plea bargain and if the Court rejects a plea bargain I may withdraw my plea of guilt; HOWEVER, IF the Court does accept my plea bargain, I EXPRESSLY waive all of my rights to appeal.

"A valid waiver of appeal, whether negotiated or non-negotiated, will prevent a defendant from appealing without the consent of the trial court." Monreal v. State, 99 S.W.3d 615, 622 (Tex.Crim.App. 2003). However, the court of criminal appeals also has held that pre-sentencing waivers of the right to appeal were not "valid" because they could not, as a matter of law, be made knowingly, voluntarily, and intelligently. Ex parte Thomas, 545 S.W.2d 469, 470 (Tex.Crim.App.19...