*1 announce, they it was because were con
cerned about destruction of the evidence” adequate
was not support the no-knock
entry. Brown v. (Tex.App.-Waco, previous
two incidents at the house were only additional support offered in the
present case to justify entry. a no-knock
But the fact there was no evidence that
during occupants those incidents had at
tempted to destroy weighs as
much in favor of requiring knocking and
announcing as the existence of the inci weighs
dents favor requiring of not
knocking and announcing. evidence,
Considering all the there is
insufficient support for a “reasonable sus-
picion particular under the circumstances”
that evidence destroyed would be if the
officers knocked and announced. Accord-
ingly, would find that the trial court
abused its discretion in denying the sup-
pression motion. The judgment should be
reversed and the evidence obtained during
the search should be excluded. Because neither, does I dissent.
Earl BITTERMAN, Appellant, Owen Texas, Appellee.
The STATE of
No. 10-02-164-CR. Texas, of Appeals
Court
Waco.
Feb. 2004.
Dissenting Opinion on Denial Rehearing March 2004.
years’ agreed to stand confinement but mute for deferred on Bitterman’s motion adjudication supervision. At community presented sentencing, The State re- of his motion. support evidence that he should be sponded with he should be imprisoned argued him to imprisoned. The court sentenced years’ imprisonment. five in which two issues presents (1) claims breached the he that: (2) the court parties’ agreement; plea his mo- permitting abused its discretion by opera- to be tion for new trial overruled tion of law.
BACKGROUND recommendation punishment pleaded at the in which Bitterman guilty was as follows: DEPART- THE IN TEXAS YEARS JUSTICE, IN- MENT CRIMINAL OF DIVISION, AND A STITUTIONAL $0,00; NEI- THE FINE STATE OF RECOM- THER NOR OPPOSES GRANT THE THAT COURT MENDS PRO- DEFERRED ADJUDICATION West, Reaves, Jr., M. for Appel- Walter MATTER. IN THIS BATION lant/Relator. sev- sentencing, At Segrest, County John W. McLennan request for support eral his witnesses Waco, Attorney, Appellee/Re- for District cross- adjudication. The State deferred spondent. Bitterman’s on examined these witnesses suitability community supervision for GRAY, Before Chief Justice Justice for accepted responsibility he had whether VANCE, and FELIPE Justice REYNA.* the com- called his conduct. The State The coun- plainant’s counselor rebuttal. OPINION MEMORANDUM granting Bitterman’s selor testified REYNA, FELIPE Justice. community would request supervision for complain- pleaded guilty wrong message send Earl Owen Bitterman her confi- sexual to a ant and would “erode some of aggravated assault. Pursuant five dence that she was indeed a victim.” bargain, State recommended * 5, 2004, January took of office Chief the oath This case was submitted with former panel, resigned but he participated Justice Davis on the Court. in the of the decision Reyna, August who 2003. Justice effective argued App.2002); Page that Bitterman’s re- The State adjudication quest (Tex.App.-Waco for deferred should be 318 (1) accepted denied because: “he has not Compliance with former Rule (2) actions”; he de- responsibility his *3 25.2(b)(3) jurisdictional prerequi is not a the committing during nied the offense 2. Rath 91 at 803 n. Bayless, site. S.W.3d (8) presentence investigation; grant- and er, the rule determines compliance with ing community supervision would the send cognizable appeal. what issues are Id. wrong message complainant. to the by asking State concluded the court “to appeal Bitterman’s notice of states in follow the State’s and sentence pertinent part appealing that he is an issue penitentiary.” him to the to granted permission which the trial court an appeal. signed The trial court order PLEA BREACH OF AGREEMENT granting permission appeal ruling “to the argues Bitterman in his first issue that denying of this court defendant’s motion the breached the parties’ plea agree- alleged trial.” Bitterman in the for new by presenting ment that he evidence prosecutor motion for new trial that the imprisoned by arguing should be Ac- parties’ agreement. breached the imprisoned. he should be The State re- cordingly, we conclude that the issue of (1) sponds jurisdic- that: we do not have prosecutor the whether the breached tion to address this it ex- issue because one on the trial court agreement is which scope ceeds the of the issues identified in granted appeal. to permission (2) appeal; Bitterman’s notice of Bitter- argues The State next that Bitter- preserve man failed to this issue our our preserve man failed to this issue for review because he did not raise this com- timely review because he did not make a court; plaint timely in a in fashion the trial objection. timely objection be the “[T]o (3) the State did not par- breach the must be at a time at which the trial court agreement. ties’ State, may remedy the Moore v. [error].” perfected Bitterman this Because 385, (Tex.Crim.App.1999); 999 397 S.W.2d appeal before the recent amendments to State, 568, Montoya v. 43 accord S.W.3d Appellate Rules of Procedure took ef 2001, (Tex.App.-Waco pet.). 572 no fect, provisions appellate of former 25.2(b)(8) apply. rule Former rule contends that the State 25.2(b)(3) required appeal plea agreement by a notice of in a breached the the intro plea bargain testimony by case im specify improper which of three duction of types objection of issues would An to the ad presented proper argument. be (1) defect; appeal, namely: jurisdictional improper a should be mission of (2)an by issue raised motion and at the time the evidence is offered to written made (3) State, trial; preserve Aguilar ruled on before or an issue on error. v. 26 901, granted (Tex.Crim.App.2000); which the trial court 905-06 permission S.W.3d Tex.R.App. 25.2(b)(3), State, 27, appeal. (Tex.App.- P. 32 948-949 Gone S.W.3d ref'd). (Tex.Cases) 2001, (Tex.Crim.App. xcvi Texarkana 2002). 1997, object prosecutor’s amended The terms of a did not to the offer 25.2(b)(3) appeal notice of under de evidence which he contends violated the Rule thirty days scope may plea agreement fine the of the issues which be until after Bayless he filed the motion for new appeal. such an when State, (Tex.Crim. untimely. n. 2 trial. This was See id. 91 S.W.3d Similarly, objection improper an rules for undercut well-established State, argument should be made at the time preservation of Jones v. error. See objectionable er argument preserve (Tex.Crim.App.1997) 942 S.W.2d n.l ror. See Zimmerman v. 860 S.W.2d requirement a (preservation systemic is Haliburton (Tex.Crim.App.1993); by must which be considered intermediate (Tex.App.-Fort court if raised appellate even not Bitterman’s Again, Worth parties). objection not untimely was because he did Bitter- Accordingly, we conclude that it until the fact.
present
thirty days after
man’s second issue
merit.
is without
contends
*4
affirm the judgment.
We
plea
by
the
the ad-
agreement
breached
improper
by
of
im-
mission
evidence and
VANCE, dissenting.
BILL
Justice
proper argument. He failed to make a
timely objection to
al-
either instance of
VANCE, Justice, dissenting.
BILL
Thus,
leged prosecutorial misconduct.
he
out
correctly
sets
the
preserve
has failed to
issue for our
this
to
background
procedure
that led
this
State,
review. See Guevara v.
103 S.W.3d
appeal.
549,
2003,
(Tex.App.-San
556-57
Antonio
State,
v.
87
This case is similar to Besch
State,
pet. granted);1 Williams v.
840
2002,
Antonio
(Tex.App.-San
S.W.3d 588
1991,
449, 463-64 (Tex.App.-Tyler
S.W.2d
bargain
dism’d),
involving
plea
a
pet.
State,
refd);
contra
pet.
Besch v.
whereby
agreed to
the state
588,
n.
(Tex.App.-San
Anto-
probation.” After Besch
“remain silent on
filed) (mo-
2002,
dism’d,
untimely
nio
witnesses at
several character
trial adequately preserved
tion for new
punishment
requested
the
agree-
that
complaint
plea
State breached
against
probation,
prosecutor argued
the
ment).
Id.
appeal.
it.
Id. at 590. Besch did not
Accordingly, we
that Bitter-
conclude
Later,
at 589.
he
a writ of habeas
sought
first issue is
man’s
without merit.
Appeals
and the
of
Court Criminal
corpus,
Id. He
granted
appeal.
an out-of-time
MOTION FOR
TRIAL
NEW
trial, which the
then filed a motion for new
second is
claims
his
the San
appeal,
trial court denied.
On
Id.
trial
sue that the
court abused its discre
merits of his
Antonio
the
Court considered
trial
by permitting
tion
his motion for new
Id.
breach-of-plea-agreement argument.
by
Bit-
operation
to be overruled
of law.
basis, we should
at 589-91. On that same
grounds
timely
terman did not
raise the
by
preserved
the
find that the issue was
for new trial
for relief which his motion
motion for new trial.
hold that
premised. Accordingly,
was
we
by
York and Unit
Citing
the court did not
its discretion
Santobello v. New
abuse
Block,
to
contends
his
for new trial
be
ed States v.
permitting
motion
plea agree
by operation of
law. See
the State breached
overruled
Williams,
testi
by
improper
To hold
of
predicated upon agreement by an I would hold that Bitterman is entitled normally must be fulfilled. Id. at *5 plea. judgment to withdraw his The Indeed, 1089-90. to the extent such should be reversed and the cause remand- promise was an inducement or consider- proceed- ed to the trial court for further in exchange guilty plea, ation for a such ings. majority does other- Because promise must be fulfilled. Santobello wise, respectfully I dissent. York, 257, 262, New U.S. S.Ct. (1971). 495, 80 If L.Ed.2d 427 Rehearing Overruled. up agree-
does not live
to its side of the
VANCE, Justice,
BILL
dissenting on
ment,
involuntary.
is rendered
rehearing.
denial of
Bryant
refd).
(Tex.App.-San
pet.
Antonio
again
point
I write
out that this deci-
plea bargain agreement,
in this
puts
squarely
sion
us
in conflict with the
case, indicates that in exchange
ap-
Appeals’
San Antonio Court of
decision
pellant’s guilty plea,
agreed
(Tex.App.-
Besch v.
Here, the State went further than Besch. Even if disregard we the State’s
offer of that community show
supervision negative impact would have a victim, arguments the State’s