OPINION
Appellant entered a plea of guilty to the offense of possession of heroin pursuant to a plea bargain in which the State recommended punishment at eight years in the Texas Department of Corrections. The trial court accepted the appellant's plea and assessed punishment in accordance with the plea agreement.
The record shows that the trial court admonished the defendant in accordance with art. 26.13 of the Code of Criminal Procedure. Following the plea, a disagreement arose over whether the appellant had agreed to waive his right to appeal matters raised by pretrial motion.1 While the record is not totally clear in this regard,2 the issue is not determinative of this appeal because the appellate record fails to show that appellant received adverse rulings on any of the pretrial motions that might support an appeal.
Following the confusion over whether appellant had agreed to waive and withdraw all pretrial motions, the appellant gave notice of appeal. Disputes then arose as to whether appellant could appeal and whether, given the confusion, he was entitled to bail pending appeal. The trial court refused to rule on the appellant's "Motion to Release Defendant" pending appeal, and the trial court refused to give the appellant permission to appeal his case. Bail pending appeal was not set.
Appellant then gave notice of appeal from the trial court's refusal to set an appeal bond. The appellate record was prepared, and the appeal from the guilty plea was docketed in this court as 13-83-459-CR, and the appeal from the trial court's refusal to set an appeal bond was docketed as 13-83-460-CR.
Appellant raises one ground of error in each appeal. In 13-83-460-CR appellant contends that the appellant did not agree to accept the punishment recommendation of the State and that therefore, he has the right to appeal under art. 44.02, TEX CODE *Page 176 CRIM.PROC.ANN. (Vernon Supp. 1984). See Galitz v.State, 617 S.W.2d 949 (Tex.Cr.App. 1981). The record, on the other hand, reflects the following:
THE COURT: Is there a plea bargain agreement in this case?
MS. GUTIERREZ (the prosecutor): Yes, Your Honor. In return for the Defendant's plea of guilty to the possession of heroin, the State has agreed to recommend that punishment be assessed at eight years in the Texas Department of Corrections. Furthermore the State has also agreed to recommend that the indictment in Cause No. 83-CR-67-E against his wife, Maria Rodriguez, would be dismissed, and also the State has agreed to dismiss the indictment in Cause No. 83-CR-1122-A against the Defendant Gonzalo Rodriguez for receiving stolen property.
MR. PENA (the defense counsel): That is correct, Your Honor, that's the full extent of the agreement.
THE COURT: Mr. Rodriguez, would you please stand, sir.
(Defendant complying.)
THE COURT: Mr. Rodriguez, is this your understanding of the agreement, sir?
THE DEFENDANT: Yes, sir.
THE COURT: Do you understand, Mr. Rodriguez, that if I follow the plea bargain agreement that you will go straight to the Nueces County Jail at this time, sir, —
THE DEFENDANT: Yes, sir.
THE COURT: And I've already told you that if I follow the recommendation, I will not allow the right to appeal this case?
THE DEFENDANT: Yes, sir.
The above colloquy between the appellant and the trial court is ample to show that appellant agreed to the State's recommendation on punishment and the plea bargain. It is clear that appellant entered his plea pursuant to the plea bargain agreement, that the punishment assessed by the trial court did not exceed that recommended by the State, that appellant personally agreed to the plea bargain, and that therefore, there is no appeal from the guilty plea.
Appellant contends in 13-83-459-CR that appellant pleaded guilty to possession of heroin under the provisions which were held unconstitutional in Ex parte Crisp, 661 S.W.2d 944 (Tex.Cr.App. 1983). We disagree. Although appellant pled guilty to the offense of possession of heroin nearly a month after Crisp was delivered, the indictment in the instant cause alleged the possession of more than 28 grams but less than 200 grams of heroin, which was an offense under the law as it existed before the unconstitutional 1981 amendments became effective.3 Pursuant to the holding inCrisp, the appellant's plea was to the offense as it existed prior to the amendments. See art. 4476-15, Tex.Rev.Civ.Stat.Ann. (Vernon 1976). We hold that appellant did not plead guilty to an unconstitutional statute.
Appellant did not have the right to appeal his guilty plea under art. 44.02. Therefore, the appeal in cause 13-83-459-CR is dismissed. The appeal from the trial court's refusal to set bail pending the purported appeal (13-83-460-CR) is also dismissed.
The appeals are DISMISSED.