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Click here for the full text of this decision FACTS:The appellant pleaded guilty to the offense of aggravated sexual assault pursuant to a plea agreement with the state and was sentenced by the court to five years in the Texas Department of Criminal Justice, Institutional Division. Appellant then filed a motion for a new trial, in which he alleged that the state breached the terms of the plea agreement. The trial court denied this motion, and appellant subsequently filed a timely notice of appeal. The court of appeals held that appellant’s claims were without merit because he had not preserved them for review. The state agreed to allow appellant to “make a pitch” for probation and to remain silent as to probation at appellant’s sentencing. At the sentencing hearing, appellant had several witnesses testify in support of his request for deferred adjudication, and the state cross-examined these witnesses. During cross-examination, the state questioned whether appellant deserved deferred adjudication, and additionally, called the complainant’s counselor as a rebuttal witness who testified that granting appellant deferred adjudication would send the wrong message to the complainant. The state also argued to the court that appellant was “not the kind of person that would be deserving of a second chance and an opportunity for probation” and that “it would be very dangerous for the victim to give him probation and send a message to her that in fact it was her fault.” The state then recommended that the trial court sentence appellant to five years in the institutional division of TDCJ. HOLDING:The court of appeals’ judgment is vacated, and the cause is remanded. While appellant could have withdrawn his plea at the sentencing hearing, he chose instead to request a new trial in order to compel specific performance of the plea agreement which the state had violated. Due to the flagrant violation of his plea agreement by the state, which rendered his plea involuntary, the court of appeals should have reviewed this issue for abuse of discretion by the trial judge in denying appellant’s motion for a new trial. OPINION:Meyers, J.; Price, Johnson, Keasler, Hervey, Holcomb, and Cochran, JJ., joined. Womack, J., concurred. Keller, P.J., filed a dissenting opinion. DISSENT:Keller, P.J. “Curing the error here would have required giving appellant more than he was entitled to � granting deferred adjudication rather than just considering it. But otherwise, this case is no different from any other case in which the trial court could have, but not necessarily would have, fixed a problem upon a timely objection. . . . “An objection the first time the prosecutor questioned appellant’s suitability for deferred adjudication could have kept out all of the damaging evidence and argument. The”incurable’ argument might never have occurred had counsel lodged a prompt objection.”

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