NO. 07-04-0073-CR IN THE COUR

T OF APPEALS FOR THE SEVEN TH DISTRICT OF TEXAS

AT AMARILLO PANEL D MARCH 6, 2 006

______________________________ ARKESCH D. MURPHY , Appellant

v. THE STATE OF TEXAS, Appellee

_________________________________ FROM THE 364 TH DISTRIC T COURT O F LUBBOCK COUNTY; NO. 2002-400,688; HON. BRAD UNDERW OOD, PRESIDING

________________________________

Opinion

_______________________________ Before QUINN, C.J., and REAVIS an d HANCOCK, JJ. In two issues, appellant Arkesch D. Murphy appeals his convi ction for posses sing
a controlled s ubstance (cocai ne) with intent to deliver. His tw o issues inv

olve w hether the trial court erred in 1) sua sponte granting a new tri al after accepti ng the plea ag reement and imposing s entence in a ccordan ce with that agreement and 2) denying appellant’s motion to suppres s. We reverse the judg ment of the trial court. Issue One – New T

rial1 The assist ant pr osecutor int imated that when the parties were dis cu ss ing the wa ive r of ap pe llan t’s ri ght to “ appeal” she underst ood that ter m to m ean hi s ri ght t o prosecut e any ty pe of “wr it ” founde d upon the inci dent in q uest ion. An appeal dif fers f rom a writ , however . The l att er i s an ori ginal proceedi ng whil e the former is no t. Thus, we cannot accept t he proposi ti on that an appeal ipso facto encompasses an appli cati on for wr it of habeas cor pus or one und er art . 11. 07 of t he Texas Code of Cri minal Pro cedure. 2 The record indisputably shows that

prior to th e commencement of trial, the appellant and State undertook p lea ne gotia tions and repr esented to the tr ial court t hat a plea had been reached. The agreement encom passed pleading guilty to three pending felon ies in exchange for the dismiss al of several misdemeanors, a r ecom me nded range of punishment

from the State, and thewaiver of appellant’s right to appeal. Thereafter, t he trial court admonished appellant in accordance w ith statute about the terms of punishment and effect of his guil ty plea. S o too did the trial court inquire into appellant’s com petence at t he time and his w illingne ss to proceed b y pleading guilty . The appellant r epeatedl y i nforme d the court that he understood the s ituation and desi red the court to accept the plea. Thereafter, the trial court pr onounced of record t hat it was ac ceptin g appellant’s guilty plea to each of the th ree felonies, assessed p unishment for each of fense in
accord ance with the plea agreement, and ordered that a ppellant be remanded into the custody of the s heriff to “carr y out the di rections of” t he sentences. After completion of sentenc ing, the pr osecutor utter

ed that another term of the plea bargain required appellant to w aive his right to pu rsue a “w rit” founded upon th e advice or lackthereof by defense counsel pertaining to prior plea off er. 1 Upon hearing that, appellant’s couns el d enied that such a term was par t of the agreement. Furthermore, when askby the court if he would agree to waive his right to apply for thi s particula r “writ,” appellant

said “no.” At that point, t he trial court“retract[ ed]” its pr ior acceptance of the plea agreement

because it bel ieved that appellant did not free ly, knowingly, or v oluntarilyagree2 Per the plea agreem ent, appellant waived his ri ght to question that ma tter. 3 to it. So too did it

declare that i t was “g ranting new trial in each of those cause nu mbers

. . . .” Yet, at no time did a ppe llan t move for new trial or otherwise indicate to the trial court thathe desired towithdraw his plea or otherwis e free himself from the sentence impos ed by the tri al court. Itis clear that a trial court cannot g rant a motion for new trial w ithout

the defendant first asking for s ame. T EX
. R. A PP
. P. 21.1 ; Ex parte Ybarra , 629 S .W .2d 9 43, 9 45 (T ex. Crim. App. 1982). Simply put, it has “ no power” to do so. Zaragosa v. St ate , 588 S.W.2d 322, 326-27(Tex . Cri m. App. 1979). Fur thermore, a plea agreement, though cont ractual, is binding and enforceable w hen accepted by the trial court. Wright v. State, 158 S.W.3d 590, 595 (Tex. App. –San Antonio 2005, pet . ref’d). Shoul d it not be enforced or susceptible to enforcement, however, it lies wi th the defendant to either request its specific performance or opt to w ithdraw h is plea. Id . Given t hat 1) the trial cour t accepted the pl ea agreement

and pronounced sentence upon appellant based on wha t it u nderstood the terms to be and 2) defendant did not mov e for new tr ial or other

wise attempt

to withdraw his plea, the t rial court

erred in sua sponteretracting its sentence and granting new trial. Acco rdin gly, we sustain appell ant’s first i ssue, reverse the judg mententered in this cause, reinstate the judgment as originally pronounced at the plea hearing , and rema nd the cause to the trial court to proceed as if i t had not gran ted the new trial

. Zaragosa v. State , 588 S.W.2d at 327 (so orderi ng). Fi nally, our disposition of the first iss ue relieves
us from having to address appel lant’s content ion regard ing double j eopardy and the refusal to grant his motion to suppress. 24 Brian Quinn Chi ef Justice Publish.