JAMES RYAN MORGAN v. THE STATE OF TEXAS (2012)

MEMORANDUM OPINION

Opinion By Justice FitzGerald

James Ryan Morgan appeals from the trial court's Judgment Adjudicating Guilt for appellant's offense of possession of cocaine in an amount less than one gram.   The judgment recites a sentence of 180 days' confinement and credits appellant with fifty-seven days of back credit.   In a single issue, appellant argues the trial court erred by altering the terms of a plea agreement between appellant and the State.   The facts are known to the parties, and we do not recite them in detail.   Further, because all dispositive issues are settled in law, we issue this memorandum opinion.   See Tex.R.App. P. 47.4.   We affirm.

Appellant originally pleaded guilty to cocaine possession in Collin County and was placed on deferred adjudication probation.   Subsequently, he was convicted of theft in Jefferson County, and the State moved to adjudicate his guilt in Collin County.   The State and appellant reached a plea agreement whereby appellant would plead true to the charged violations in return for a sentence of 180 days.   Appellant would be credited for 180 days in back time because he had served more than 180 days in connection with the Jefferson County conviction.

At the adjudication hearing, the plea agreement was presented to the court.   The judge accepted appellant's plea of true and adjudicated guilt.   But the record indicates the judge specifically questioned the agreed calculation of back time.   Defense counsel explained that appellant had served the 180 days “for a prior charge,” but stated in response to the judge's question that he did not believe there was a hold on appellant while he was serving the earlier sentence.   The judge closed the hearing with the comment:  “I'm going [t]o give you all the credit you deserve, but I'll have to check into the actual facts of this particular situation regarding the back time.”   The trial court's judgment ultimately awarded appellant only fifty-seven days of back time.

Appellant contends he should have been given the entire 180 days agreed to by the State or he should have been given the opportunity to withdraw his plea.   We review a trial court's determination of an appropriate punishment in any given case for an abuse of discretion.  Jackson v. State, 680 S.W.2d 809, 814 (Tex.Crim.App.1984).   A trial court has the statutory duty in a felony case, before accepting a plea of guilty or nolo contendere, to inform the defendant in open court whether it will follow or reject any plea agreement in place.   See Tex.Code Crim. Proc. Ann. art. 26.13(a)(2) (West Supp.2011).   Should the court reject the agreement, it must afford the defendant the opportunity to withdraw his plea of guilty or nolo contendere.  Id. But this statutory duty does not apply in a proceeding involving deferred adjudication probation.   See Gutierrez v. State, 108 S.W.3d 304, 309–10 (Tex.Crim.App.2003) (in context of revocation proceedings, legislature has not authorized binding plea agreements and has not provided for withdrawal of plea).   Indeed, article 26.13(a)(2) remains the only exception to the longstanding Texas rule that a defendant may not withdraw a guilty plea.   See id.   Thus, the trial court was not required to abide by the plea agreement in this case or to allow appellant to withdraw his plea once it became apparent the court was not going to adopt the entire agreement.   See id.¹

Moreover, in this case, the record indicates the trial court awarded all the back time due appellant.   Appellant was entitled to back time he had spent in jail “for the case.”   See Tex.Code Crim. Proc. art. 42.03 § 2(a)(1).   According to the Court of Criminal Appeals, a person is confined by another jurisdiction for a case—within the meaning of article 42.03—only if a hold or detainer is lodged against him by that jurisdiction.   Ex parte Rodriguez, 195 S.W.3d 700, 703 (Tex.Crim.App.2006).   Whether credit should be given is not simply determined by the fact that the person served a term in a penal institution;  instead, the right to credit is determined by the fact that another jurisdiction has chosen to lodge a hold against the individual.  Id. We find nothing in the record establishing that a hold was lodged against appellant while he served a sentence for his Jefferson County conviction.   Accordingly, the trial court did not abuse its discretion in refusing to credit appellant for that time served.

We overrule appellant's single issue and affirm the trial court's judgment.

S

Court of AppealsFifth District of Texas at DallasJUDGMENT

JAMES RYAN MORGAN, Appellant

No. 05–11–00123–CR V.

THE STATE OF TEXAS, AppelleeAppeal from the 219th Judicial District Court of Collin County, Texas.  (Tr.Ct.No.219–80670–07).

Opinion delivered by Justice FitzGerald, Justices Bridges and Lang participating.

Based on the Court's opinion of this date, the judgment of the trial court is AFFIRMED.

Judgment entered May 31, 2012.

/Kerry P. FitzGerald/

KERRY P. FITZGERALD

JUSTICE

FOOTNOTES

FN1. Appellant's plea agreement was memorialized in the document titled Defendant's Plea of True and Stipulation of Evidence.   There, under the heading “Defendant's Statement, Waivers, and Stipulations,” appellant adopted the statement:I also understand that if the Court determines that I violated the terms and conditions of my community supervision, ․ if adjudication of guilt had been deferred the Court may adjudicate my guilt, find me guilty and assess my punishment anywhere within the range of punishment provided by law for the offense for which I was placed on community supervision.Thus, appellant was aware when he entered his plea that the trial court was not bound by the parties' agreement as to punishment..  FN1. Appellant's plea agreement was memorialized in the document titled Defendant's Plea of True and Stipulation of Evidence.   There, under the heading “Defendant's Statement, Waivers, and Stipulations,” appellant adopted the statement:I also understand that if the Court determines that I violated the terms and conditions of my community supervision, ․ if adjudication of guilt had been deferred the Court may adjudicate my guilt, find me guilty and assess my punishment anywhere within the range of punishment provided by law for the offense for which I was placed on community supervision.Thus, appellant was aware when he entered his plea that the trial court was not bound by the parties' agreement as to punishment.

KERRY P. FITZGERALD JUSTICE