12 S.W.3d 607 | Tex. App. | 2000
OPINION
On April 28, 1999, the Texas Court of Criminal Appeals granted the State’s petition for discretionary review and remanded the case so that this Court might reconsider appellant’s contentions in light of the recent decisions in Ditto and Ervin. See Ditto v. State, 988 S.W.2d 236 (Tex.Crim.App.1999) (consolidated with Ervin v. State). We withdraw our opinion and judgment of October 28, 1998, and affirm in part and dismiss for lack of jurisdiction in part.
Factual and PROCEDURAL History
On July 13, 1992, Herrera pled guilty to the offense of delivery of heroin. In exchange for his guilty plea, the State recommended punishment at ten years confinement and a fine of $1,500.00, and agreed to remain silent on Herrera’s application for deferred adjudication. The trial court accepted Herrera’s guilty plea, deferred adjudicating him, and placed him on deferred adjudication probation for ten years. Later, the trial court revoked Herrera’s probation, adjudicated him guilty, and sentenced him to twenty years in prison.
Arguments on Appeal
Herrera challenges his conviction in two points of error. First, he argues that the trial court erred in imposing a sentence that exceeds the terms of his plea-bargain agreement. He asserts that under his agreement, the trial court could not impose a sentence greater than ten years. See Ervin v. State, 955 S.W.2d 416, 419 (Tex.App.-San Antonio 1997) (when defendant pleads guilty pursuant to plea agreement, and is placed on deferred adjudication probation, the trial court must either sentence in accordance with plea agreement or allow defendant to withdraw plea in event his probation revoked), rev’d sub nom. Ditto v. State, 988 S.W.2d at 236.
By way of his second point of error, Herrera complains that the trial court erred in failing to consider several post-judgment motions. By way of his third point of error presented as his sole point of error on remand, Herrera complains that the trial court relied upon an erroneous “repeater” paragraph in the original indictment when sentencing him.
Because Herrera was punished in accordance with the plea agreement when he received deferred adjudication probation and the trial court did not fail to follow the plea agreement, we overrule his first point of error and affirm his conviction. We dismiss his remaining points of error for lack of jurisdiction.
. We have the jurisdiction to consider a challenge that the sentence imposed after adjudication of guilt exceeds the punishment recommended by the prosecutor. See Ervin, 955 S.W.2d at 418.
. We note that this contention is belied by the record. The “repeater” paragraph about which Herrera complains is an alternative pleading contained in the indictment.