Can a Plea Bargain Sentence Be Appealed In Texas ?
In Ex Parte Howard, 685 S.W.2d 672 (Tex. Crim. App. 1985), the Court held the defendant's right to appeal was limited by Code of Criminal Procedure Article 44.02, now Rule 25.2(b)(3).
Although we noted that "it should be kept in mind that appellant's plea of 'true' to the allegations of the motion to proceed to adjudication was also made pursuant to a plea bargain," there was no indication by the Court that this fact played any part in the decision to apply the appeal limitations to the defendant's case. Id. at 673 n.2. Later, in Brown v. State, 943 S.W.2d 35 (Tex. Crim. App. 1997).
The Court stated that "a plea-bargaining defendant has no avenue for relief.
Under Texas Rule of Appellate Procedure 40(b)(1) [now Rule 25.2(b)(3)], a plea-bargaining defendant is barred from appealing nonjurisdictional errors occurring before and after entry of his plea unless:
(1) the trial court gives permission to appeal;
(2) the matter to be appealed was raised by written motion and ruled on before trial." Id. at 41 (citing Rule 40(b)(1) and Lyon v. State, 872 S.W.2d 732 (Tex. Crim. App. ), cert. denied, 512 U.S. 1209, 129 L. Ed. 2d 816, 114 S. Ct. 2684 (1994)).
A defendant who trades a plea of guilty or nolo contendere for a recommendation by the prosecutor that a judgment of guilt be delayed while he serves a period of community supervision necessarily accepts, at least in the absence of some express agreement to the contrary, that the prosecutor is making no recommendation at all concerning the term of years he may be required to serve if his probation is later revoked and the trial court proceeds to adjudicate him guilty of the charged offense. Id. at 714.
The defendant's knowledge, at the time of his original plea, that he might receive any sentence within the range allowed by law means that "the punishment assessed did not exceed the punishment recommended by the prosecutor and agreed to by the defendant" and Rule 25.2(b)(3) applies.
It is the defendant's initial plea of guilty or nolo contendere to the charged offense which warrants application of Rule 25.2(b)(3), not the later plea of true or not true to the alleged violations.