IN THE COURT OF APPEALS
FOR THE SEVENTH DISTRICT OF TEXAS
AT AMARILLO
PANEL D
APRIL 20, 2006
______________________________In re N.R., a minor _________________________________
FROM THE 98TH DISTRICT COURT OF TRAVIS COUNTY;
NO. J-19,073; HON. W. JEANNE MEURER, PRESIDING _______________________________
Memorandum Opinion ________________________________
Before QUINN, C.J., and REAVIS and CAMPBELL, JJ.
N.R., a juvenile, appealed from a disposition order dated November 3, 2004, committing her to the Texas Youth Commission (TYC). The trial court so committed her after conducting a hearing on the State's "Motion to Modify Disposition." The court had previously adjudicated that N.R. engaged in delinquent conduct. The conduct consisted of her attempt to steal a car. Thereafter, she was placed on probation. Believing that she had violated one or more conditions of her probation, the State moved to modify her disposition. N.R. admitted to violating one of the conditions, and the trial court committed her to TYC. Before us, she questions the trial court's jurisdiction to originally adjudicate that she engaged in delinquent conduct. And, because it purportedly lacked such jurisdiction, the initial adjudication purportedly was void as was the order confining her to TYC. We overrule the contention and affirm.
According to N.R., the State was obligated to allege in its original petition the value of the vehicle she attempted to steal, and because it did not, the pleading was defective. Additionally, the defect was a matter that could be raised after her probation was revoked and she was committed to TYC, she continues. Finally, she relies upon Peoples v. State, 566 S.W.2d 640 (Tex. Crim. App. 1978) to support each contention. That case is inapposite, however. Peoples dealt with an actual criminal prosecution and the allegations needed to render an indictment valid. Yet, a proceeding to determine whether a juvenile engaged in delinquent conduct (e.g. like the one here) is not fully criminal but also civil. In re A.I., 82 S.W.3d 377, 379 (Tex. App.-Austin 2002, pet. denied). Moreover, the pleading standards in cases like those at bar are less stringent than those applicable in an actual criminal prosecution. In re J.B.M., 157 S.W.3d 823, 825 (Tex. App.-Fort Worth 2005, no pet.). Indeed, the State need only allege, with reasonable particularity, the time, place, and manner of the acts involved and the penal law or standard of conduct allegedly violated. Tex. Fam. Code Ann. §53.04(d) (Vernon 2002). And, if the acts and penal law involved relate to the attempt to engage in a particular criminal act, the State need only aver "the elements of a[] criminal attempt offense[], and need not allege the constituent elements of the underlying offense." In re J.B.M., 157 S.W.3d at 825.
Here, the State asserted through its original petition that N.R. engaged in delinquent conduct on
January 27, 2003 . . . by then and there with the specific intent to commit the offense of theft of a motor vehicle, without the consent of the owner, Cinthia Venezio, did an act which amounted to more than mere preparation that intended but failed to effect the commission of the offense by breaking the steering column of said motor vehicle.
As can be seen, the underlying acts and penal offense concerned an attempt to commit theft, as opposed to actual theft. See Tex. Pen. Code Ann. §15.01(a) (Vernon 2003) (defining one engaged in criminal attempt as a person who, with specific intent to commit an offense, does an act amounting to more than mere preparation that tends but fails to effect the commission of the offense intended). Thus, the State need only have alleged the elements of attempt, not the elements of theft, such as the value of the object to be stolen. Finally, the allegations it did aver were of sufficient particularity to reasonably afford N.R. notice of the time, place and manner of the acts she undertook and the penal laws she allegedly transgressed. It need not have complied with Peoples.
Accordingly, we affirm the "Order Modifying Probation Dispositional [sic] Order of Commitment to the Texas Youth Commission."
Brian Quinn
Chief Justice
d his contentions have been preserved for our review, we must reject them on their merits, for the same reasons we rejected the same contentions in Simmons. Id. at *2-*3. We overrule appellant's points of error three through six, and find we have jurisdiction of his appeal.
Withdrawal of Guilty Plea and Imposition of Sentence
In appellant's first point of error, he contends the trial court erred when it failed to allow appellant the opportunity to withdraw his plea because the court never accepted the plea agreement. The State responds that appellant's first point of error presents nothing for review because the argument made was not presented to the trial court. We agree with the State.
Plea agreements are generally contractual arrangements between the State and defendant. State v. Moore, 240 S.W.3d 248, 251 (Tex.Crim.App. 2007). A plea agreement's contractual nature does not become binding, however, until the trial court accepts the proffered agreement. Id. See also Ortiz v. State, 933 S.W.2d 102, 104 (Tex.Crim.App. 1996); Ex parte Williams, 637 S.W.2d 943, 947 (Tex.Crim.App. 1982) (contract not operative until the court announces it will be bound by plea bargain agreement); Hatley v. State, 206 S.W.3d 710, 718 (Tex.App.-Texarkana 2006, no pet.) (once negotiated plea agreement is formally accepted by trial court, binding contractual relationship exists between State and defendant).
Neither at the September 2004 plea hearing nor the May 2007 sentencing hearing did appellant assert the court had never announced its acceptance of the plea bargain agreement. At the sentencing hearing, appellant argued he had not breached the agreement by committing additional offenses before being called to testify in the other defendants' trials. (6) There was no suggestion the plea agreement was not binding because the court had not accepted it. Arguments made on appeal must comport with those made at trial. See Lanum v. State, 952 S.W.2d 36, 40 (Tex.App.-San Antonio 1997, no pet.).
Moreover, even had the point of error been preserved, we could not agree with appellant's contention. The signed plea bargain agreement was received into evidence at the plea hearing in September 2004, and appears in the appellate record along with other plea papers signed at that time, including written admonishments and appellant's written waivers of rights and judicial confession. Cf. Dorsey v. State, 55 S.W.3d 227, 232-33 (Tex.App.-Corpus Christi 2001, no pet.), discussed in Moore, 240 S.W.3d at 251 (noting purported plea agreement in Dorsey was never filed with trial court and parties said at plea hearing there was no agreement). The record also reflects that, at the time of appellant's guilty plea, the court inquired whether appellant understood the documents he had signed and the terms of the plea agreement. Appellant answered affirmatively in open court.
At the May 2007 sentencing hearing, the court stated it had conversations with both parties off the record concerning the "terms of the plea agreement that was filed" and noted that the "agreement will be part of the court's record." The court went on to find appellant had violated terms of his plea agreement. (7) In sentencing appellant to ten years of confinement, the court stated it was "relying on paragraph 2 of page 2 [of the written agreement] and that is I'm still within the parameters of the plea bargain based on his signed terms of the plea bargain agreement. Originally the recommendation was for five years. I am going to sentence him to ten years confinement TDC, finding him guilty of evading arrest with a motor vehicle as an enhanced offense."
In its findings entered on our remand, the trial court found it "did not reject the plea bargain agreement nor refuse to be bound by it under [article 26.13(2) of the Code of Criminal Procedure]." By its finding, the court implicitly found it had accepted the plea agreement. The records of both the 2004 plea hearing and the May 2007 sentencing hearing support the court's implicit finding.
Appellant does not dispute that he knowingly and voluntarily agreed to the plea agreement. The record shows the trial court reviewed the terms of the plea agreement, discussed them in open court, and accepted the plea at the initial plea hearing held in 2004. A copy of the plea agreement was entered into evidence. The trial court again indicated its acceptance of the plea agreement at the sentencing hearing. The court accepted appellant's guilty plea, found him guilty, and sentenced him within the parameters of the plea agreement. See Moore, 240 S.W.3d at 254, citing Dorsey, 55 S.W.3d at 232.
We overrule appellant's first point of error.
Terms of Agreement
By his second point of error, as an alternative argument appellant asserts the terms of the plea agreement required the court to allow appellant the opportunity to withdraw his plea. We disagree, and overrule the point.
In its findings entered on remand, the trial court found it followed the terms of the plea agreement in sentencing. We agree with the trial court's reading of the agreement. As noted, the State informed the trial court appellant had not fulfilled his obligations under the agreement and, under its express terms, his failure to do so caused "the agreement as to disposition" in the case to be "voided and withdrawn, and [appellant to] be subject to the full range of punishment." Under the language of the agreement, and on these facts, the trial court opined appellant did not have the right to withdraw his guilty plea, and we agree. See Moore, 240 S.W.3d at 253-54 (construing and finding plea agreement enforcible).
Finding no error, we affirm the judgment of the trial court.
James T. Campbell
Justice
Do not publish.
Pirtle, J., concurring and dissenting.
1. See Tex. Penal Code Ann. § 38.04(b)(2)(A) (Vernon 2001). This is a felony of the third degree punishable by imprisonment for any term of not more than 10 years or less than 2 years and a fine not to exceed $10,000. Tex. Penal Code Ann. § 12.34 (Vernon 2003).
2. In return, the State recommended a five-year probated sentence.
3. Paragraph 2 of the State's agreement with appellant states:
Should Jaime Trevino fail to fulfill his obligations under this Agreement, as
determined by the State, the State will inform the Court of such failure, the
agreement as to the disposition in this case will be voided and withdrawn,
and the said Jaime Trevino will be subject to the full range of punishment for
the offense of Evading Detention with a Vehicle-Enhanced.
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