Nos. 04-03-00006-CR, 04-03-00007-CR
Delivered and Filed: June 8, 2005. DO NOT PUBLISH.
Appeal from the 175th Judicial District Court, Bexar County, Texas, Trial Court Nos. 2001-CR-6448 and 2002-CR-4151, Honorable Mary Roman, Judge Presiding Affirmed.
Sitting: Karen ANGELINI, Justice, Phylis J. SPEEDLIN, Justice, Rebecca SIMMONS, Justice.
KAREN ANGELINI, Justice.
Appellant Howard Brown appeals his convictions for aggravated assault with a deadly weapon and murder. Because former Texas Rule of Appellate Procedure 25.2(b)(3) applies to this appeal, we are precluded from addressing Brown's issues on appeal and must affirm the judgments of the trial court.
Background
Howard Brown was charged by indictment for aggravated assault with a deadly weapon and by information for murder. At a single hearing, pursuant to his plea agreements, Brown entered no contest pleas in both his aggravated assault and murder cases. The terms of the plea agreements required Brown to enter a guilty plea and provide the following: (1) "full, complete, and truthful evidence concerning his knowledge in two murders . . . and any and all offenses committed by any person"; (2) live testimony "before any Grand Jury, pretrial, trial, probation hearing . . . [including] testifying truthfully at the trial(s) of [co-defendant] concerning [Brown's] knowledge of any and all offenses committed by [co-defendant]"; and (3) a "full, complete, and truthful sworn written voluntary statement concerning the offenses to which he was to provide information." Under the agreements, the State "retained the right to make any recommendation regarding punishment at the sentencing phase of the murder trial, up to and including the maximum term of ninety-nine years or life" and the right to "be the sole and final arbiter of defendant's good faith in the fulfillment" of the agreements. If Brown faithfully fulfilled his obligations under the plea agreements, the State agreed to recommend that Brown be sentenced to a term of eighteen years and assessed a $1000 fine in each case. However, if Brown failed to fulfill his obligations under the agreements, the State, with regard to sentencing, retained the right to make whatever recommendations it deemed appropriate. At the plea hearing, the trial court admonished Brown and questioned the voluntariness of his pleas. However, the trial court did not announce whether it would follow or reject the plea agreements. The court then accepted the pleas and, following the State's offer of proof, found Brown guilty as charged in both cases. A pre-sentence investigation report was requested and, as stipulated in the plea agreements, sentencing was postponed until Brown had the opportunity to comply with his obligations under the agreements. At sentencing, the State argued Brown had failed to comply with the terms of the plea agreements. Specifically, the State asserted, and Brown admitted in his testimony, that Brown wrote letters to his co-defendant in which Brown claimed that he had lied in the statement he had given to a police detective about the murder investigation. Brown also admitted that the statement he had given did not contain all of the information he knew and that he had refused to give that information to the prosecution. When requested by the State, Brown also refused to provide correspondence that he had received from the co-defendant. Because the agreements required Brown to give a "full, complete, and truthful statement," and by his own admission did not do so, the State recommended life imprisonment on both charges. Brown was sentenced to seventy-five years' confinement on both charges to run concurrently. Brown then filed a general notice of appeal. Appellate Review
On appeal, Brown raises two issues. First, Brown asserts that by not giving him the opportunity to fully comply with the terms of the agreements, the State breached the plea agreements, and as such, the trial court erred in denying his request for specific performance of the agreements. Second, Brown contends that because the trial court did not accept the plea agreements in open court, pursuant to Texas Code of Criminal Procedure article 26.13, he is entitled to withdraw his pleas. In response, the State argues that because Brown's general notice of appeal does not comply with former Texas Rule of Appellate Procedure 25.2(b)(3), we must dismiss these appeals. However, pursuant to Bayless v. State, 91 S.W.3d 801 (Tex.Crim.App. 2002), we would not dismiss the appeals, but would, instead, affirm the trial court's judgments. In Bayless, the court of criminal appeals concluded that "defects in the notice [of appeal] that do not affect whether the instrument filed with the clerk is actually a notice of appeal do not prevent the appellate court from having jurisdiction over the appeal." Id. at 803 n. 2. "Instead, they might affect the matters that are cognizable by the appellate court." Id. Accordingly, the issue in this case is not whether our jurisdiction was invoked; it is whether we have "the power to address the merits of appellant's claims." Id. Whether we have the power to address the merits of Brown's claims is determined by whether Brown's appeal is governed by former rule 25.2(b)(3), which applies to an appeal from a judgment rendered on a defendant's plea of guilty where the punishment assessed does not exceed the punishment recommended by the State and agreed to by the defendant. Zapata v. State, 121 S.W.3d 66, 67 (Tex.App.-San Antonio 2003, pet. ref'd). Former rule 25.2(b)(3) requires the notice of appeal to specify the following: (1) the appeal is for a jurisdictional defect; (2) the substance of the appeal was raised by written motion and ruled on before trial; or (3) the trial court granted permission to appeal. Any defects in the notice may affect whether an appellate court "has the power to address the merits of [Brown's] complaints." Bayless v. State, 91 S.W.3d 801, 803 n. 2 (Tex.Crim.App. 2002). Accordingly, whether we have the power to address Brown's complaints on appeal begins with a determination of whether Brown is appealing from judgments rendered on a defendant's plea of guilty where the punishment assessed does not exceed the punishment recommended by the State and agreed to by the defendant. Texas Code of Criminal Procedure article 26.13(a)(2) provides that before accepting a plea of guilty, the trial court shall admonish a defendant of the fact that the recommendation of the prosecuting attorney as to punishment is not binding on the court. Provided that the court shall inquire as to the existence of any plea bargaining agreements between the state and the defendant and, in the event that such an agreement exists, the court shall inform the defendant whether it will follow or reject such agreement in open court and before any finding on the plea. Should the court reject any such agreement, the defendant shall be permitted to withdraw his plea of guilty or nolo contendere. Tex. Code Crim. Proc. Ann. art. 26.13(a)(2) (Vernon Supp. 2004-05) (emphasis added). Substantial compliance with the requirements of article 26.13 is sufficient "unless the defendant affirmatively shows that he was not aware of the consequences of his plea and that he was misled or harmed by the admonishment of the court." Id. art. 26.13(c) (Vernon 1989). While we agree the statute requires that before making a finding on the plea, the trial court inform the defendant of whether the plea agreement has been accepted, acceptance of a plea agreement can be done implicitly by the trial court simply implementing the agreement. See Ditto v. State, 988 S.W.2d 236, 238 (Tex.Crim.App. 1999) (by imposing punishment that comported with the terms of the plea agreements, the trial judges "informed" appellants by their action that they would follow the terms of the agreement). Here, although the trial court failed to expressly inform Brown about whether it would follow the agreements, the trial court did, in fact, follow the terms of the plea agreements. After finding Brown guilty on both charges, the trial court ordered a pre-sentence investigation and postponed sentencing to allow Brown time to fulfill the terms of the plea agreements. However, at sentencing, by his own admission, Brown acknowledged that he did not abide by the terms of the plea agreements. Under the terms of the plea agreements, if Brown failed to fulfill his obligations, the State had the right to make whatever recommendation it deemed appropriate up to and including life imprisonment. The State recommended life imprisonment on both charges, and the trial court assessed punishment at seventy-five years' confinement. Accordingly, we hold that the trial court implicitly accepted the plea agreement by implementing its terms. See Ditto, 988 S.W.2d at 238. Therefore, Brown is appealing from judgments rendered on a plea of guilty where the punishment assessed did not exceed the punishment recommended by the State and agreed to by Brown. As such, his appeals are subject to the limitations imposed by former rule 25.2(b)(3). And, because the requirements of former rule 25.2(b)(3) preclude us from addressing Brown's issues on appeal, we affirm the trial court's judgments. See Bayless, 91 S.W.3d at 803 n. 2.