the court shall inquire as to the existence of any plea bargaining agreements between the state and the defendant and, in the event that such an agree

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NUMBER 13-00-444-CR


COURT OF APPEALS


THIRTEENTH DISTRICT OF TEXAS


CORPUS CHRISTI


JOSE DE LA FUENTE, Appellant,

v.


THE STATE OF TEXAS, Appellee.


On appeal from the 138th District Court

of Cameron County, Texas.


O P I N I O N


Before Justices Dorsey, Hinojosa, and Rodriguez

Opinion by Justice Dorsey


This is an appeal from a plea of guilty for delivery of a controlled substance for which appellant, Jose De La Fuente, was sentenced to ten years in prison. Appellant's plea of guilty was not made subject to a plea bargain agreement. After the trial court found him guilty, the case was set for sentencing at a later time so a pre-sentence investigation could be made and a report prepared. Defense counsel indicated that a side agreement had been reached with the prosecutor's office, and the judge announced that it would be discussed at sentencing.

At the sentencing hearing an investigator for the district attorney's office testified that an agreement had been reached between his office and the appellant that if the appellant cooperated and aided them in seizing narcotics and making cases against perpetrators, they would recommend probation. The investigator testified that appellant had not cooperated with their office to any meaningful extent, and had breached his duties under the contract. Appellant testified somewhat to the contrary. The trial judge found that appellant had breached his contract with the district attorney's office, and that even if he had not, the district attorney could only recommend probation as a punishment, and such would not be binding on the court. The trial judge then sentenced appellant to ten years in prison.

Appellant brings three points of error, arguing in essence that a plea bargain had been reached, he performed his part of the bargain, and he was entitled to either performance by the State or a withdrawal of his plea of guilty, citing a number of cases that hold that a trial court must either enforce the bargain or allow the defendant to withdraw his plea of guilty. See McWherter v. State, 571 S.W.2d 312, 313 (Tex. Crim. App. 1978); Papillion v. State, 908 S.W.2d 621, 624 (Tex. App.-Beaumont 1995, no pet); Escobedo v. State, 643 S.W.2d 243, 246 (Tex. App.-Austin, 1982, no pet).

The applicable statute is Article 26.13 of the Texas Code of Criminal Procedure in that it sets forth the method to handle plea bargain agreements. That article deals with pleas of guilty and expressly states what the court should admonish the defendant prior to accepting a plea of guilty. Section (a)(2) of that article provides:

Provided that the court shall inquire as to the existence of any plea bargaining agreements between the state and the defendant and, in the event that such an agreement exists, the court shall inform the defendant whether it will follow or reject such agreement in open court and before any finding on the plea. Should the court reject any such agreement, the defendant shall be permitted to withdraw his plea of guilty or nolo contendere.


Tex. Code Crim. Proc. Ann. art 26.13 (a)(2) (Vernon Supp. 2002).


That procedure was followed explicitly in this case. The court inquired whether there were any plea bargains, to which the defendant answered "none." The written admonitions concerning the plea indicated there was no plea bargain and that no sentence would be recommended in exchange for the plea of guilty. The reason the court is required to inquire whether there is a plea bargain is to put everything on the record and above board before the court accepts the plea along with the conditions and recommendations agreed to. The procedure has been established to protect the defendant in his bargain with the State to plea guilty. There is no evidence here indicating that the appellant's plea of guilty was predicated on any recommendation of punishment by the district attorney. This was not a plea of guilty covered by article 26.13(a)(2) allowing the defendant to withdraw his plea if he is dissatisfied with the sentence imposed.

The conviction is affirmed.



______________________________

J. BONNER DORSEY,

Justice


Do not publish.

Tex. R. App. P. 47.3(b).


Opinion delivered and filed

this 25th day of July, 2002.