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Garcia v. State

Voluntariness of appellant's plea cannot be the basis of appeal from a plea proceeding subject to Texas Rule of Appellate Procedure 25.2(c)(3).

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Appellant, Jesus M. Garcia, appeals from an order of the trial court placing him on deferred adjudication pursuant to a plea bargain. He asserts that his plea was not voluntary and that the trial court abused its discretion in refusing to hold a hearing on his motion for new trial. We dismiss for want of jurisdiction.

On December 12, 2000, pursuant to a plea bargain, the judge of the 140th District Court in Lubbock County (“the trial court”) considered evidence in Cause No. 97-425,011 in which appellant was charged with sexual assault. Finding the evidence substantiated appellant’s guilt, *fn1 the trial court honored the plea bargain between the State and appellant, deferred adjudication of appellant’s guilt, and placed appellant on community supervision for ten years.

On January 9, 2001, appellant filed both a Motion for New Trial and a Notice of Appeal. His Notice of Appeal stated that his notice and appeal were exempt from the requirements of Tex. R. App. P. 25.2(b) *fn2 because he was challenging the voluntariness of his plea. His Motion for New Trial claimed that (1) appellant had not been advised by either of his attorneys that he was to plead guilty on December 12, 2000, and that he was not aware of the planned plea; (2) neither of his attorneys advised him of “the INS consequences of his plea and as a result, [appellant] is now on the verge of being deported”; and (3) before December 12th, the complaining witness had recanted her accusations, admitted that she perjured herself in making the accusations against appellant, and advised appellant’s attorney that she wished to drop the charges against appellant, but that appellant’s attorney failed to develop such facts or pursue the line of defense. Appellant filed a request for the trial court to make findings of fact and conclusions of law as to his motion.

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