Robert F. Tucker v. Joann Page--Appeal from 302nd District Court of Dallas County

SUPREME COURT CASES

Laws-info.com » Cases » Texas » 11th District Court of Appeals » 2001 » Robert F. Tucker v. Joann Page--Appeal from 302nd District Court of Dallas County

State: Texas

Court: Texas Northern District Court

Docket No: 11-00-00317-CV

Case Date: 09/13/2001

Plaintiff: Robert F. Tucker

Defendant: Joann Page--Appeal from 302nd District Court of Dallas County

Preview:Earl Owen Bitterman v. The State of Texas--Appeal
from 54th District Court of McLennan County
MAJORITY | MAJORITY
IN THE
TENTH COURT OF APPEALS
No. 10-02-00164-CR
Earl Owen Bitterman,
Appellant
v.
The State of Texas,
Appellee
From the 54th District Court
McLennan County, Texas
Trial Court No. 2001-160-C
Opinion ON REMAND
Earl Owen Bitterman pleaded guilty to aggravated sexual assault. Pursuant to a plea bargain, the State recommended
five years confinement but agreed to stand mute on Bitterman s motion for deferred adjudication community
supervision. The court sentenced him to five years imprisonment. Bitterman contends in two issues that: (1) the State
breached the parties plea agreement; and (2) the court abused its discretion by permitting his motion for new trial to be
overruled by operation of law. We will reverse and remand.
On original submission, a majority of this Court held that Bitterman had not preserved his first issue because he did
not object when the State introduced testimony which violated the plea agreement or when the State presented
argument which violated the agreement. See Bitterman v. State, 131 S.W.3d 519, 521-22 (Tex. App. Waco 2004). We
held in similar fashion that the court did not abuse its discretion by allowing the motion for new trial to be overruled
by operation of law because the grounds raised in the motion had not been timely raised during the plea proceedings.
Id. at 522.
The Court of Criminal Appeals reversed, holding that Bitterman properly preserved his contention that the State
breached the plea agreement by raising it in his motion for new trial. Bitterman v. State, 180 S.W.3d 139, 144 (Tex.
Crim. App. 2005). That Court remanded the cause to this Court to consider whether the trial court abused its discretion
by allowing Bitterman s motion for new trial to be overruled by operation of law.[1] Id.
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Bitterman contends in his second issue that the trial court abused its discretion in this regard. The State contends that
no abuse of discretion is shown because: (1) Bitterman s motion failed to confer jurisdiction on the trial court because
it was not verified or supported by affidavit; and (2) the trial court does not have the power to grant a new trial on the
issue of punishment alone.
With regard to the State s jurisdictional argument, we have reviewed the authorities cited[2] and find that none
supports the contention that a trial court does not have jurisdiction to consider a timely-filed motion for new trial
which is not verified or supported by affidavit. Rather, these authorities stand for the propositions that: (1) a trial court
does not have jurisdiction to hear an untimely motion for new trial; see Drew v. State, 743 S.W.2d 207, 223 (Tex.
Crim. App. 1987); State v. Lewis, 151 S.W.3d 213, 218-19 (Tex. App. Tyler 2004, pet. ref d); and (2) a trial court is
not obligated to hold a hearing on a motion for new trial if the motion is not verified or supported by affidavit.[3] See
Wallace v. State, 106 S.W.3d 103, 108 (Tex. Crim. App. 2003); Alcott v. State, 26 S.W.3d 1, 4 (Tex. App. Waco
1999), aff d, 51 S.W.3d 596 (Tex. Crim. App. 2001).
Here, Bitterman timely filed his motion for new trial. Thus, the trial court had jurisdiction to hear it. See Drew, 743
S.W.2d at 223; Lewis, 151 S.W.3d at 218-19.
Although Bitterman did not verify the motion or provide affidavits to support it, the court nevertheless heard the
motion. Cf. Wallace, 106 S.W.3d at 108; Alcott, 26 S.W.3d at 4. Because the allegations of the motion could be
determined from the trial record and did not require any additional evidence, the fact that Bitterman s motion for new
trial is not verified or supported by affidavit has no bearing on this issue. Cf. Rivera v. State, 123 S.W.3d 21, 29 (Tex.
App. Houston [1st Dist.] 2003, pet. ref d) (no evidentiary hearing required when allegations of motion are affirmatively
demonstrated in the record ).
The State is correct that the trial court has no authority to grant a new trial on the issue of punishment alone. See State
v. Aguilera, 165 S.W.3d 695, 698 n.6 (Tex. Crim. App. 2005); cf. Tex. Code Crim. Proc. Ann. art. 44.29(b) (Vernon
Supp. 2005) (appellate court may grant new trial as to punishment only because of errors in punishment phase).
However, in a proceeding in which the defendant has pleaded guilty or nolo contendere pursuant to a plea bargain, a
trial court may properly entertain a motion for new trial, grant it, rehear the defendant s plea, and re-sentence him, and
it does not thereby violate the prohibition against a grant by a trial court of a new trial as to punishment only. Aguilera,
165 S.W.3d at 698 n.6.
The State breaches a plea agreement to stand silent on the issue of community supervision when it presents evidence or
argument encouraging the court to sentence the defendant to prison. See Bitterman, 180 S.W.3d at 143-44; Besch v.
State, 87 S.W.3d 588, 590-91 (Tex. App. San Antonio 2002, pet. dism d, untimely filed). When the State breaches a
plea agreement, the defendant is entitled either to specific performance or to withdraw his plea. Bitterman, 180 S.W.3d
at 143; accord Santobello v. New York, 404 U.S. 257, 263, 92 S. Ct. 495, 499, 30 L. Ed. 2d 427 (1971).
To paraphrase the Court of Criminal Appeals, the State committed a flagrant violation of [Bitterman s] plea agreement.
Bitterman, 180 S.W.3d at 144. Bitterman called this breach to the court s attention in his motion for new trial, which
the court allowed to be overruled by operation of law after a hearing. The court thus abused its discretion because the
flagrant violation of [Bitterman s] plea agreement by the State . . . rendered his plea involuntary. See id.; Besch, 87
S.W.3d at 589-91. Accordingly, we sustain Bitterman s second issue.
We reverse the judgment and remand this cause to the trial court for further proceedings consistent with this opinion.
FELIPE REYNA
Justice
Before Chief Justice Gray,
Justice Vance, and
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Justice Reyna
Reversed and remanded
Opinion delivered and filed May 31, 2006
Publish
[CR25]
[1] In the words of the Court of Criminal Appeals, the court of appeals should have reviewed this issue for abuse of
discretion by the trial judge in denying Appellant s motion for new trial. Bitterman v. State, 180 S.W.3d 139, 144 (Tex.
Crim. App. 2005).
[2] Drew v. State, 743 S.W.2d 207, 223 (Tex. Crim. App. 1987); Dugard v. State, 688 S.W.2d 524, 529 (Tex. Crim.
App. 1985), overruled on other grounds by Williams v. State, 780 S.W.2d 802 (Tex. Crim. App. 1989) (per curiam);
Norman v. State, 588 S.W.2d 340, 348 (Tex. Crim. App. [Panel Op.] 1979); Barnett v. State, 76 S.W.3d 739, 740 (Tex.
App. Waco 2002, pet. ref d); Alcott v. State, 26 S.W.3d 1, 4 (Tex. App. Waco 1999), aff d, 51 S.W.3d 596 (Tex. Crim.
App. 2001); Gonzalez v. State, 659 S.W.2d 470, 474-75 (Tex. App. Corpus Christi 1983, pet. ref d).
[3] Nor is a hearing required if the defendant fails to present the motion for new trial to the trial court. See Rozell v.
State, 176 S.W.3d 228, 230 (Tex. Crim. App. 2005). Bitterman presented his motion to the trial court.
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