concurring.
The parties here signed an agreement. The State dismissed two charges of child abuse against appellant; in return, she pleaded guilty to two others and agreed not to appeal. Having obtained what she bargained for, she now appeals anyway.
A defendant in a noncapital case may waive any rights secured by law. See Tex.Code CRiM. Proc. Ann. art. 1.14(a). That includes the right to appeal. See Blanco v. State, 18 S.W.3d 218, 220 (Tex.Cr.App.2000).
Nevertheless, for many years the Court of Criminal Appeals disregarded waivers of appeal, citing three reasons: (1) the right to appeal had not yet matured, (2) the defendant could not know what errors would occur at trial, and (3) the defendant could not know what sentence would be assessed. See Ex parte Townsend, 538 S.W.2d 419, 420 (Tex.Cr.App.1976). The first has been abrogated by amendments to the appellate rules. See Tex.R.App. P 27.1(b) (allowing prematurely filed notices of appeal). The second does not apply to negotiated pleas, as that plea is the “trial.” See Alzarka v. State, 60 S.W.3d 203, 205-06 (Tex.App.-Houston [14th Dist.] 2001, pet. granted). The third does not apply if the trial judge assesses the punishment that the parties agreed to in their bargain. See Blanco, 18 S.W.3d at 220.
In this case, there was no agreement on punishment, so it was tried to the court. But that should not make appellant’s waiver unenforceable. While she could not know what errors might occur during the punishment phase, she certainly did as to the guilt phase, since her plea put an end to that part of her trial. Thus, if her waiver is limited to the guilt phase, there is no reason to be concerned that she is waiving an error she did not know about.
And while appellant did not know what punishment she would receive, that was not a part of her bargain. The defendants in Townsend, Blanco, and Alzarka bargained for reduced sentences; their “deal” was lost if sentence was not reduced. To borrow from contract law, there was a failure of consideration if punishment was not as the parties agreed.
But knowing her sentence was not a part of appellant’s bargain — she bargained not for a reduced sentence but a reduced *528number of charges. When the State dismissed those charges, she got what she bargained for, whatever sentence she eventually received. Townsend’s requirement that she know her sentence should not apply when a reduced sentence was not a part of her bargain. I would apply the concept behind Townsend (failure of consideration), rather than the specific test it set out for a different type of bargain.
Although appellant waived all appeal in her agreement, Townsend appears to limit that waiver to errors during the guilt phase, as errors during the punishment phase were yet to occur. Compare United States v. Richards, 302 F.3d 58, 71-72 (2d Cir.2002) (considering appeal when defendant waived right to appeal plea but retained right to appeal sentencing). Because all of her points on appeal relate to her plea rather than her punishment, I would dismiss her appeal based on her waiver.
Thus, I would hold that appellant has received the benefit of her plea bargain, and waived any appeal from her guilty plea. Because the panel instead affirms the trial court’s judgment, I concur in the result only.