Todd Phillip Quaglia v. State ( 2000 )

97-00420 Quaglia v State of Texas.wpd No. 04-97-00420-CR Todd Phillip QUAGLIA, Appellant v. The STATE of Texas, Appellee From the 144th Judicial District Court, Bexar County, Texas Trial Court No. 92-CR-1858 Honorable Susan Reed, Judge Presiding

Opinion by: Alma L. López, Justice

Sitting: Phil Hardberger, Chief Justice

Alma L. López, Justice

Paul W. Green, Justice

ON REMAND FROM THE COURT OF CRIMINAL APPEALS

Delivered and Filed: July 31, 2000

AFFIRMED

The Court of Criminal Appeals granted the State's petition for discretionary review in this cause and remanded the cause for further consideration. In our first consideration of this cause, we reversed and remanded the judgment of the trial court based on our decision in Ervin v. State, 955 S.W.2d 416 (Tex. App.-San Antonio 1997), rev'd Ditto v State, 988 S.W.2d 236 (Tex. Crim. App. 1999). In Ervin, we determined that when a defendant pleads guilty pursuant to a plea bargain agreement that caps punishment, and is placed on deferred adjudication probation, the trial court must either follow the prosecutor's recommendation on punishment upon revocation or allow the defendant to withdraw his plea. See Ervin, 955 S.W.2d at 419. Following Ervin, we reversed the trial court's judgment because the trial judge sentenced Quaglia to ten years in prison upon revocation of his deferred adjudication probation even though Quaglia's plea bargain agreement capped punishment at five years. See Quaglia v. State, No. 04-97-00420-CR, 1998 WL 224731 (Tex. App.-San Antonio 1998), remanded No. 950-98, slip op. at 2 (Tex. Crim. App. Apr. 28, 1999).

Since that time, the Court of Criminal Appeals reversed Ervin, reasoning that "a plea agreement in which the State makes no recommendation on probation or does not address it at all, but sets a cap on punishment, is satisfied when the trial court assesses as punishment deferred adjudication probation within the terms of the cap." Ditto v. State, 988 S.W.2d 236, 239 (Tex. Crim. App. 1999). The Court further indicated that the "[i]mposition of a higher sentence is not precluded upon preceding to adjudication due to a violation of the terms of deferred adjudication probation since the bargain was satisfied and completed by previous assessment of the deferred adjudication." Ditto, 988 S.W.2d at 239-40. This is exactly what happened in the instant case.

In Quaglia's plea agreement, the State agreed to a five-year cap on punishment and agreed to remain silent on Quaglia's application for deferred probation. After accepting Quaglia's plea, the trial judge deferred adjudication and placed Quaglia on probation. As a result, the trial judge did not err upon revocation of Quaglia's probation when she sentenced Quaglia to ten years in prison. See Ditto, 988 S.W.2d at 239.

Because we relied on our original opinion in Ervin for first consideration of this appeal, we never reached Quaglia's pro se issues. In his original brief, Quaglia complained that the trial judge did not continue him on probation, and that when the trial judge asked if there was any reason a sentence could not be imposed, his attorney responded only "no."⁽¹⁾ Quaglia, however, pled "true" to the State's allegation that he violated the terms of his probation by using cocaine. A plea of "true" to an allegation that a probationer violated the terms of his probation is sufficient to support revocation. Cole v. State, 578 S.W.2d 127, 128 (Tex. Crim. App. 1979). The record does not reflect any reason sentence should not have been imposed at that time. As a result, we overrule Quaglia's issues on appeal and affirm the judgment of the trial court.

Alma L. López, Justice

DO NOT PUBLISH

1. Quaglia also filed a pro se brief on remand. Therein, Quaglia complained that the petition for discretionary review (PDR) in this cause was illegally granted. The PDR was granted in accordance with the rules of appellate procedure. No reason exists to address this issue on remand of this cause.