dissenting.
The majority correctly sets out the background and procedure that led to this appeal.
This case is similar to Besch v. State, 87 S.W.3d 588 (Tex.App.-San Antonio 2002, pet. dism’d), involving a plea bargain agreement whereby the state agreed to “remain silent on probation.” After Besch presented several character witnesses at the punishment hearing and requested probation, the prosecutor argued against it. Id. at 590. Besch did not appeal. Id. at 589. Later, he sought a writ of habeas corpus, and the Court of Criminal Appeals granted an out-of-time appeal. Id. He then filed a motion for new trial, which the trial court denied. Id. On appeal, the San Antonio Court considered the merits of his breach-of-plea-agreement argument. Id. at 589-91. On that same basis, we should find that the issue was preserved by the motion for new trial.
Citing Santobello v. New York and United States v. Block, Bitterman contends that the State breached the plea agreement by the introduction of improper testimony and by improper argument. Santo*523bello v. New York, 404 U.S. 257, 92 S.Ct. 495, 30 L.Ed.2d 427 (1971); United States v. Block, 660 F.2d 1086 (5th Cir.1981); see also Bass v. State, 576 S.W.2d 400, 400-01 (Tex.Crim.App.1979) (“this is a dispute over whether the State breached its plea bargain with appellant, and must be examined in light of Santobello v. New York”). Besch summarizes the applicable law:
As part of a plea agreement, the State is free to negotiate away any right it may have to recommend a sentence. United States v. Block, 660 F.2d 1086, 1091-92 (5th Cir.1981). Guilty pleas predicated upon an agreement by the State normally must be fulfilled. Id. at 1089-90. Indeed, to the extent such promise was an inducement or consideration in exchange for a guilty plea, such promise must be fulfilled. Santobello v. New York, 404 U.S. 257, 262, 92 S.Ct. 495, 80 L.Ed.2d 427 (1971). If the State does not live up to its side of the agreement, the plea is rendered involuntary. See Bryant v. State, 974 S.W.2d 395, 398 (Tex.App.-San Antonio 1998, pet. refd).
The plea bargain agreement, in this case, indicates that in exchange for appellant’s guilty plea, the State agreed to remain silent on probation. [Footnote omitted.] An agreement by the State to remain silent has been construed by federal appeals courts to mean that the State is precluded from attempting to influence the sentencing judge. Block, 660 F.2d at 1090-91; United States v. Avery, 589 F.2d 906, 908 (5th Cir.1979); United States v. Crusco, 536 F.2d 21, 26 (3d Cir.1976). Thus, such an agreement restricts the State’s right to make certain types of statements to the court. Besch, 87 S.W.3d at 589-90.
Here, the State went further than in Besch. Even if we disregard the State’s offer of evidence to show that community supervision would have a negative impact on the victim, the State’s arguments that “it would be very dangerous for this victim to give him probation” and “we would ask the court to follow the State’s recommendation and sentence him to the penitentiary” both attempted to influence the sentencing judge. See id. As such, they violated the plea agreement. Id.; Block, 660 F.2d at 1090-91. When the State did not live up to its side of the agreement, the plea was rendered involuntary. Besch, 87 S.W.3d at 589. Accordingly, I would conclude that Bitterman’s first issue is meritorious.
CONCLUSION
I would hold that Bitterman is entitled to withdraw his plea. The judgment should be reversed and the cause remanded to the trial court for further proceedings. Because the majority does otherwise, I respectfully dissent.
Rehearing Overruled.
BILL VANCE, Justice, dissenting on denial of rehearing.
I write again to point out that this decision puts us squarely in conflict with the San Antonio Court of Appeals’ decision in Besch v. State, 87 S.W.3d 588 (Tex.App.San Antonio 2002, pet. dism’d). There, the Court of Criminal Appeals granted an out-of-time appeal, and Besch filed a motion for new trial, which the trial court denied. Id. In that appeal, the San Antonio Court considered the merits of his breaeh-of-plea-agreement argument. Id. at 589-91. If the issue was preserved for review in Besch, it is preserved for review here.
I would grant the motion for rehearing and decide the merits of Bitterman’s issue regarding the prosecutor’s breach of the plea agreement. Because the majority refuses to do so, I respectfully dissent.