Jessie Trevino Villarreal v. State

Villarreal v. State






IN THE

TENTH COURT OF APPEALS


No. 10-92-003-CR


     JESSIE TREVINO VILLARREAL,

                                                                                              Appellant

     v.


     THE STATE OF TEXAS,

                                                                                              Appellee


From the 361st District Court

Brazos County, Texas

Trial Court # 20,653-361

                                                                                                    


O P I N I O N

                                                                                                    


      Jessie Trevino Villarreal was indicted on September 12, 1991, for the felony offense of theft of property having a value over $750 and less than $20,000. On October 25, he pled guilty to the offense and was sentenced to eight years in the Institutional Division of the Texas Department of Criminal Justice. Under a plea-bargain agreement, the court probated the sentence for eight years. One of the conditions of probation, authorized by the Texas Code of Criminal Procedure, was that Villarreal complete 300 hours of community service. See Tex. Code Crim. Proc. Ann. art. 42.12, § 11(a)(10) (Vernon Supp. 1993). Terms and conditions of Villarreal's probation were not part of the plea bargain.

      Villarreal's sole argument on appeal is that the court erred in failing to make a pronouncement in open court of the "added" condition, which deprived him of an opportunity to withdraw his plea of guilty. He contends that he did not expect community service as a condition of his probation and that the court's imposition of the condition rendered his plea of guilty involuntary. For two reasons we will affirm.

VILLARREAL FAILED TO PRESERVE ERROR

      A party is required to present to the trial court a timely request, objection, or motion and obtain a ruling thereon to preserve a complaint for appellate review. Tex. R. App. P. 52(a). Assuming that the "added" condition was improper, Villarreal did nothing to bring his complaint to the attention of the trial court. He did not object to the condition or request to withdraw his plea, and he never filed a motion for new trial to allow the trial court to correct any alleged error.

      Although Rule 30(b) enumerates nine situations in which a new trial must be granted, that list is not exhaustive. State v. Evans, No. 1306-91 (Tex. Crim. App. Dec. 16, 1992); Tex. R. App. P. 30(b). The drafters of Rule 30(b) intended for a trial court to have the discretion to consider matters not enumerated in the statute. Id. Whether the court could or could not add the condition of probation without breaching the plea-bargain agreement, and whether the failure to announce the condition precluded Villarreal from withdrawing his guilty plea are precisely the types of issues the drafters had envisioned should be raised in a motion for new trial. Bringing complaints to the attention of the trial court promotes judicial economy and the purpose of Rule 30(b) because it allows the trial court to correct any errors without the need for appeal and remand. As Villarreal took no action to preserve his complaint, there is nothing before this court for appellate review. See Tex. R. App. P. 52(a).

VILLARREAL ACQUIESCED TO THE CONDITIONS OF PROBATION

      Even if Villarreal had properly preserved his complaint, we would still affirm. Villarreal relies on Fielder v. State, which held that a condition not agreed to by the defendant rendered the guilty plea involuntary. See Fielder v. State, 834 S.W.2d 509, 516 (Tex. Crim. App. 1992). However, in Fielder, part of the plea bargain included an agreement that the defendant would not serve jail time. In this case there was no such agreement. Villarreal bargained for probation, and he got probation. During the sentencing hearing, the judge admonished Villarreal as follows:

THE COURT: However, I will suspend the penitentiary time, and you will be placed on probation for a period of eight years. Now, while you are being placed on probation, there are certain terms and conditions which you will be expected to comply with. You need to make sure that you understand each and every condition, because if you violate just one of these conditions, then upon proper proof and evidence to the Court, that probation may be revoked and you may be going to the Institutional Division at that time. Do you understand?

DEFENDANT VILLARREAL: Yes, ma'am.

      Villarreal then signed the judgment, which included 300 hours community service clearly marked as a condition of probation. Villarreal's signature appeared in two places on the judgment directly beneath the following statements: "I acknowledge receipt from the Clerk of a copy of my conditions of probation," and "I acknowledge that a Probation Officer of Brazos County and the Courts has explained the conditions of my probation, and I understand them."

      By signing the judgment and affirming that he was aware of the terms and understood them, Villarreal acquiesced in the conditions contained in the judgment and cannot now complain of them.

      We affirm the judgment.

 

                                                                                 BILL VANCE

                                                                                 Justice


Before Chief Justice Thomas,

          Justice Cummings, and

          Justice Vance

Affirmed

Opinion delivered and filed March 17, 1993

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