COURT OF A PPEAL S EI GHTH D I STRI CT OF TEX AS ELPASO, TEXAS

RAMON ENRI QUE MANZ O, Appellant,

v. THE STATE OF TEXAS, Appellee

. § § § § § § No. 08-08-00325- CR

Appea l from Criminal District Court No. 1 of El Paso County , Texas (TC # 20030D01620)

O P I N I O N Ramon Enrique Manzo was indicted for intentiona l l y an d knowing ly possessing a usable quantity of marijuana , m o re t h an fifty pounds but 2,000 pounds or less. A jury found Appellant g uilty as char ged i n t h e i ndictment. We aff irm the conviction, but we vacate the sentenc e and

rema nd for a new punishment hea

ring

. F ACTUAL BACK GR OUND Deputy Sheriff Victor Donoso was called out to the Paso Del Norte port of entry on Marc h 13, 2003 for a nar cotics possession ca se. When he a rrived, he was direc ted by customs inspe ctors to 91 bundles of marijuana

. The bundles weig hed 175.3 pounds. He took possession of the bundles, impounded a red For d Mustang , and met with Appellant. Donoso advised Appellant of his r ights, place d him under arr est, and transporte d him to the Montana substation. Donoso booked Appellant into jail and placed the marijuana in the evidenc e locke r. Customs and B order Protection Off icer Ramiro Veg a testified that while he patrolled with

a K- 9 o ff icer , the dog starting pulling toward a red Mustang driven by Appellant. Veg a asked Appellan t wh at he was bring ing from Mexi co and Appellant responde d that he was not bring ingany

thing. Veg a asked one of the office rs car ry ing a density meter to come over to the vehicle. Veg a walked A ppellant over

to the headhouse wher e he w as plac ed in a de tention cell. Meanw hile, Offic er Maribel Terr azas ran the density meter along the bumper of the Mustang

once she saw the dog

. She rec eived an abnorma l rea ding on the density meter. Terr azas then beg an

a visua l i n s p ection of the bumper and noticed that there was foam within the bumper and a g ap betwee n the foam and the metal box

. She inserted a probe and extracted what appea red to be a g ree n leaf y substance. Terr az as then interviewe d Appellant for basic biogr aphica l information. After Appellant g ave Terr azas his name, he asked her if they had found any drug s in the vehicle. Terr azas asked for his date of birth, and ag ain Appellant asked if they found drug s in the vehicle. As a matter of policy , drivers are not informed of investiga tions until specia l ag ents take custody and rea d them their rig hts. Appellant asked Terr azas a third time if they had fo u n d an y d ru gs in the vehicle. Terr azas descr ibed his demea nor as very

anxious , pacing

back a nd forth, wa lking a

round, moving around, with his head looking down at the g round. Asked direc tly about his repe ated inquiries, Appellant responde d, “B eca use I saw the dog run around my car , so I know there must be drug s in the vehicle.” Terr azas tested t he g ree n leaf y substance to confirm that it was marijuana. On cross- examination, she admitted that she could not smell the odor or marijuana emana ting from the vehicle

. J ose L uis Perez, a specia l ag ent with the I mmigra tion and Customs Enforc ement, took photogr aphs of the vehicle to demonstrate exactly wher e the marijuana was located. He interviewe d Appellant and g ave him his Miranda war nings. Appellant explained that he had come with his mother to El Paso four day s ear lier. He had just purcha sed the Mustang for $4,000. He put his car in the shop for some radiator pr oblems and they took about three day s to fix it. Appellant blamed the people who fix ed his car for putting the drug s i n the car . But up to that point, Perez had notinformed Appellant why he was being detained. Perez asked him what repa irs wer e done at the shop

and Appellant responde d that they repla ced the ra d i ator, the thermostat, and the belts

. Perez then asked him how he thought the drug s g ot in his vehicle. At that point Appe llant r equeste d a lawy er and the interview was terminated. Perez inspected the vehicle and found no evidenc e of repa irs, nor did he locate rec eipts for the w ork done. O nly the vehicle reg istration was inside the ca r. Perez beca

me suspicious of the vehicle beca use the key chain only contained two key s--one for the igni t i on and one for the door. I n his experience , the fact that Appellant only had two key s is an indication that the vehicle was just rec en t l y g iven to him for the purpose of transporting the vehicle. Perez corr oborate d previous testimony that the drug smugg lers try to establish a pattern of crossing to lower suspic i o n an d t o take advanta g e of shift chang es as the opportune time to cross

car s. Appellant’s vehicle had exactly three crossing s all close to shift chang es. Appellant crosse d twice on Marc h 12 and once on Marc h 13 when he was detained. Perez testified that a pound of marijuana sells for betwe en $225 to $250 in E l Paso. Once the drug s head north or ea st, the value may incre ase substantially

. Marijuana sells for close to $600 a pound in the Dallas/F ort Worth are a. I n Perez’s experience , the transporte rs o r “m u l es” that car ry the drug s from Point A to Point B ty pically are awa

re that they possess the drug s beca use the owner s of the drug s are not willing to risk their produc t on individual who is unaware

. During Appellant’s case -in-chie f, his mother testified that her son came to the El Pa s o / Juare z

are a in Marc h 2003 beca use she was having surg ery on Marc h 17. She admitted on crossexamination that as of the date of the trial, she ha d not y et had the sur g ery . Appellant’s g irlfriend te stified that she drove with Appellant from Fort Worth to J uare z in Marc h and stay ed with his mother for a wee k. Appellant tes t i fi ed that he lived in For t Worth and worke d as a heating and coolingtechnicia

n, ear ning betwee n $500 to $600 a wee k. He beg an experiencing car trouble while visiti ng his mother in J uare z. Appellant had his brother take his car to a mecha nic. The mecha

nic asked for $100 to repla ce the radia tor, and Appellant paid $125 to repla ce a belt, the thermostat, and the water hose. He g ot his car back three day s later, on Marc h 12. He took his g irlfriend shopping in El Paso and then later that same day returne d to El Paso to buy beer and cig are ttes beca use they stop selling beer at eig ht o’clock in Juarez. Whil e in J uare z, Appellant asked his cousin, Martha Rios, to wire him $200 by Western Union beca

use he was running low on m o n ey an d wanted to stay until Marc h 17. Appellant was stopped on his w ay to E l Paso to pic k up the money

. He was at his mother ’s home the whole time his car w as at the shop a

nd he neve r saw a

ny one put drug s in his car. Appellant testified that while he was in line on the bridg e, office rs came by with a dog

. The dog beg an scra tching at the bumper. The office r opened the passeng er door of the Mustang and let the dog inside the car . The dog beg an scra tching ever y wher e. He told the office rs at the bridg e that he was set up beca

use he knew there wer e drug s in his car by the behavior of the dog s. He admitted that none of the office rs had informed him t h at t h ere wer e drug s in the car when he made that
statement.SUF F ICIENCY OF THE E VIDENCE

I n his first two Points of Error , Appellant challeng es the leg al and fac tual sufficie ncy of the evidenc e to support the convic tion. Standard of Review I n revie wing the leg al sufficie ncy of evidenc e, we consider all evidenc e in the l i gh t m o s t favor able to the verdic t and det er mine whether any rational trier of fac t could have found the essential elements of the crime bey ond a rea sonable doubt. Jack son v. Virginia , 4 4 3 U.S

. 307, 318 -1 9 , 99 S.Ct

. 2781, 2788-89, 61 L .Ed.2d 560 (1979). We look at “eve nts occur ring befor e, during and afte r the commission of the offe nse and may rely on actions of the defe ndant which show

an understanding and common desig n to do the prohibited act.” Hooper v. State , 214 S.W .3d 9, 13 (Tex.Crim.App. 2007), quoting Cordova v. State , 698 S.W .2d 107, 111 (Tex.Crim.App. 1985). We must acc ount for “t h e responsibility of the trier of fac t to fairly resolve conflicts in testimony , to weig h the evidenc e, and to draw rea sonable infere nces from basic fac ts to ultimate fac ts.” Hooper , 214 S.W .3d at 13, quoting Jackson , 443 U.S. at 318-19, 99 S.Ct. 2181. Appellate courts are constitutionally empower ed to revie w the judgme nt of the trial court to deter mine the fac tual sufficie ncy o f the evidenc e used to establish the elements of an offe nse. Johnson v. State , 23 S.W .3d 1, 6 (Tex.Crim.App. 2000), citing Clewis v. State , 922 S.W .2d 1 2 6 , 129-30 (Tex.Crim.App. 1996). I n examining the fac tual sufficie ncy of the elements of the offe nse, all evidenc e is viewed in a neutra l light, favor ing neit h er p arty

. Clewis , 922 S.W .2d at 129. I n perf orming our revie w, due defe renc e is g iven to the fac t finder’ s deter minations. See Johnson , 23 S.W .3d at 8-9. Evidence may be fac tually insufficient if it is so wea k that it would clea rly be wrong and manifestly unjust for the verdic t to stand, or “the adver se finding is ag ainst the g rea t weig ht and preponde ranc e of the availab l e evidenc e.” Johnson , 23 S.W .3d at 11. The question that must beanswe red w hen re viewing fac tual sufficie ncy is whether a neutral revie w of all the evidence, both for and ag ainst the finding , demonstrates that the proof of g uilt is so obviously wea k as to undermine confide nce in the jury ’s deter mination, or proof of g uilt, althoug h am p l e if taken alone, is g rea tly outweig hed by

contra ry proof. Id

. Under the first prong of Johnson , we cannot conclude that a c onviction is “cle arly wrong ”

or “manife stly

unjust” simply

beca use, on the a mount of evidenc e admitted, we would have voted
to acquit had we been on the j ury . W atson v. Stat e , 204 S.W .3d 404, 417 (Tex.C ri m . Ap p . 2 0 0 6 ). Under the second prong of Johnson , we cannot decla re that a conflict in the evidenc e justifies a new trial simply

beca use we disag ree with the jury ’s re solution of the conflict. Id . I n order to find that evidenc e is fac tually

insufficient to support a ve rdict, we must be able to sa y , with some objective b as is in the record, that the gre at weight and preponde ranc e of the evidence contradicts th e j u ry ’s verdic t. Id

. Eleme nts of the Offense T o p r o v e p ossession of marijuana , the State must nece ssarily prove that the acc used e xe r c is e d

ca re , control, and manag ement over the marijuana , and that he knew he was in possession o f t h e

co n t raba nd. Martin v. State , 753 S.W .2d 384, 386 (Tex.Crim.App. 1988). Possession involve s more than simply being where t h e ac t i o n i s; it require s exercise of dominion and control over the thing alleg edly possessed. Mc Go l d r ick v. State , 682 S.W .2d 573, 578 (Tex.Crim.App. 1985). Evidence must a ffirma tively link the acc used to the contra band by evidenc e indicating knowledg e and contr ol. Menc haca v. State , 901 S.W .2d 640, 651 (Tex.App--El Paso 1995, pet. r ef’ d), citing W aldon v. State , 579 S.W .2d 499, 501 (Tex.Crim.App. 1979). The burden of establi s h i n g aff irmative links re sts upon the State. Menc haca , 901 S.W .2d at 651, citing D amron v. State , 570 S.W .2d 933, 935 (Tex.Crim.App. 1978). Proof of knowledg e is an infere nce draw n by the jury fromall circ umstances

. Dillon v. State , 574 S.W .2d 92, 94 (Tex.Crim.App. 1978). Knowledg e may arise

from the conduct of and rema rks by the acc used or from circ umstances surrounding the acts eng ag ed in by the ac cused. Sharpe v. State , 881 S.W .2d 487 (Tex.App.--El Paso 1994, no pet.)

. An aff irmative link, which may be shown by either direc t or circ umstantial evidenc e, “must establish, to the requisite level of confide nce, that the acc used’s connec tion with the drug was more than just fortuitous.” Brown v. State , 911 S.W .2d 744, 747 (Tex.Crim.App. 1995). Fa ctors that may aff irmatively link the acc used to contra band include whether : (1) the contra band was in plain view

or recovere d from an enclose d place ; (2) the acc used was the owner of the premises or the place wher e the contra

band was found; (3) the acc used was found with a larg e amount of ca s h ; (4 ) t h e contra band was co n v en i entl y acc essible to the acc used; (5) the contra band was found in close proxi mity to the acc used; (6) a strong residual odor of the contra band was prese nt; ( 7) the acc used possessed other contra

band when arr ested; (8) para pherna lia to use the contra band was in view, or found on the acc used; (9) the phy sical condition of the acc used indicated rec ent consumption of the
contra band in question; (10) conduct by the ac cused indicated a consciousness of g uilt; (11) the

acc used attempted to flee ; (12) the acc u s ed m ad e furtive g estures; (13) the acc used had a specia l

connec tion to the contra

band; (14) the occupa

nts of the premises g ave conflicting statements about rele vant matters; (15) the acc u s ed made incriminating statements connec ting himself to the
contra band; (16) the quantity of the contra band; and (17) the acc used was observe d in a suspicious

are a under suspicious circ umstances. Lassaint v. State , 79 S.W .3d 736, 740-41 (Tex.App.--Corpus C h ri s t i 2002, no pet.). Any list of aff irmative links is non-exclusive. Castellano v. State , 8 1 0 S.W .2d 800, 805 (Tex.App.--Austin 1991, no pet.). The logic al forc e the fac tors play in establishing the elements o f t h e offe nse is more important than the number of fac tors involved. See Jones v. State , 963 S.W .2d 826, 830 (Tex.App.--Te x arka na 1998, pet. r ef’ d).I f evidenc e sug g ests that the acc used has dominion or control over the vehicle in which the

contra band is conce aled, the acc used may be i n possession of the contra band. Castellano , 810 S.W .2d at 806. (finding that defe ndant exercised control over a car and possession of its contra band

as a passeng er when he instructed the dr iver to continue on the fre ewa y and not e x it). Knowledg e of the prese nce of contra

band may be inferr ed from control over the vehicle in which the contra band is conce aled, particula

rly when the amount of contra band is larg e enoug h to indicate that the acc used knew of its prese nce. Castellano , 810 S. W

. 2 d at 806. When contra band is found in hidden

com p ar t m en t s in a vehicle, the court should not rely solely upon control of the vehicle to show knowledg e. Id

. Additional fac tors indicating knowledge, such as circ umstances indicating a consciousness of

g uilt, mus t be examined. Id

. I n Menc haca v. State , we found the evidenc e sufficie nt to support the appellant’ s conviction for possession of marijuana

. 901 S.W .2d 640, 652 (Tex.App.--El Paso 1995, pet. ref ’d). Mencha ca had attempted to cross throug h customs inspection at t h e P aso del Norte Br idge

. Id

. at 644. The
customs inspector noticed that the vehicle had tempora ry license plates, that the key that opera ted the vehicle was the only one on the key chain, and that Mencha ca appea red nervous beca

use his hands wer e shaking and he avoided making ey e contac t. Id

. Mencha ca stated that he had borrowe d the car from a friend and was taking it to Deming , New Mexi co. Id

. When the inspector opened the passeng er side door, he observe d a small cy lindrical object wra pped in g ray duct tape underne ath the ri gh t front fende r. Id

. Throug h the aid of a trained canine , inspectors found 49.5 pounds o f marijuana

. Id

. I n our analy sis, we focuse d on the fac t that at trial, the jury was well awa re that the

ca rgo with which Mencha ca had been entrusted was valuable. Id

. at 652. The jury could have a made r ationally

inferr ed that Menc haca

would not have be en entr usted to car

ry the valuable car g o

acr oss an international border if he wer e unawa re of it. Id .; citing Castellano v. State , 810 S.W .2d800, 806 (Tex.App.--Austin 1991, no pet.)(f inding simil ar infere nce rational). The fac t that Mencha ca appea

red nervous and had difficulty opening the t runk bec ause his hands were shaking also may have allowed the jury to rationally infer that knowledg e of the con t ra b and cause d his

nervousne ss. Id

. at 652. Ba sed on the evidenc e, we conclude d that the evidenc e was sufficie nt. Id

. I n Delgado v. State , the appellant challeng ed the leg al and fac tual sufficie ncy of the evidenc e to sustain his conviction for possession of marijuana

. 2009 WL 497740, at *2 (Tex.App.--El Paso, 2009, no pet.)(not designa ted for publication). We found t hat Delga do exercised control over the vehicle and its contra

band beca use he was the driver and sole occupa nt. Id

. at *4. The aff

irmative links connec ting him to the contraband included : (1) the quantity and location of t he contraband; (2) conduct during his interac tion with the office r; and (3) a notebook, considere d to be a “drug ledg er,” found in the vehicle. Id

. The office r found the marijuana in a hidden compar tment and the office r testified that Delg ado became nervous when he was g iven t he reason for the stop. Id . His h ands wer e shaking and he beg an to stutter as he talked. Id

. The evidenc e was not insufficient despite t he fact t hat he did not make a ny incriminating statements, di d not have a l arg e amount of cash on him, and did not attempt to flee

. Id

. Her e, the State relies on mostly circ umstantial evidenc e to show an aff irmative link betwee n Appellant and the contra

band. The a ffirma tive links supported by the evidenc e ar e: (1) A

ppellant owned the Mustang c arr

y ing the marijuana ; (2) his conduc t indicated a c onsciousness of g uilt; (3)
t h e quantity of the contra band; and (4) he was observe d in a suspicious place under suspici o u s circ umstances. I t is undisputed that Appellant is the owner , driver, and sole occupa nt of the Mustang wher e the marijuana was found. Know l ed ge of the prese nce of contra band may be inferr ed from control over the vehicle in which the contra band i s co n ce al ed, particula rly when the amount of
contra band is larg e enoug h to indicate that the acc used knew of its presenc e. See Castellano , 810S.W .2d at 806. But we will not rely solely upo n co n t ro l o f t he vehicle since the contra band was found in hidden compar

tments. Additional fa ct o rs indicating knowledg e, such as circ umstances indicating a consc iousness of g uilt, mus t be examined. Offic er Terr azas descr ibed Appellant as very anxious , pacing back and f o r th , w a lk in g a

r o u n d , moving a round, with his he ad looking down at the g round. He repe atedly asked Terr azas whether the inspectors f

ound drug s in his car. Appe llant blamed the men who fix ed his car for putti ng the drug s there befor e Perez informed him why he was being interviewe d. Appellant also admitted that when the office rs and K-9 beg an to approa ch his car , he blurted out that the smell came from a skunk he hit on the road. Based on Appellant’s behavior and comments, a jury could have rationally inferr ed that Appe llant display ed a c onsciousness of g uilt. We turn next to the quantity of the contra b an d

. The Mustang contained 175.3 pounds of marijuana with an approximate value of $40,000 to $100,000 depending on its final destinati o n . Ag ent Perez testified that the marijuana would be worth signific antly more if Appellant wer e to take the m arijuana to the Dallas/Fort W orth are a. The amount of m arijuana supports an inferenc e that Appellant had knowledg e of its exis tence

. See Menc haca , 901 S.W .2d at 652 (holding that the jury was well awa

re that the carg o with which the defe ndant had been entrusted was valuable an d that it was a ra tional infere nce tha t the defe ndant would not have be en entr usted in taking the valuable

car g o acr oss an international border if he wer e a mere innocent, i gn o ra nt of all the details surrounding his responsibility and the importanc e of the car g o in his care ). The testimony also demonstrates that Ap p el lant was observe d in a suspicious place under suspicious circ umstances. Ag ent Perez testified that Appellant’ s k ey s and crossing history wer e consistent with drug traff icking . Drug traff

icker s have a

habit of “burning” the l icense plates i nto the inspection stat ion’s computers to establish a crossing history

. I f a vehicle has a history ofcrossing , it is less likely to draw suspicion. Appellant crossed t he bridge twice t h e day befor e his

ar re s t

. T he jury may have inferr ed that Appellant was attempting to “burn” his plates. He al s o

crosse d during or nea r shift chang es. The circumstance s of Appellant’s crossing helped crea te an aff irmative link betwee n him and the marijuana found in his vehicle. Viewing the evidenc e in a favor able ligh t towards the verdic t, we conclude it is leg ally sufficie nt to enable a rational jury to conclude that Appellant exercised ca re , co n t ro l , custody , or manag ement over the marijuana and that he k n ew he was in possession of the marijuana

. We

overr ule Point of Error One. Viewing the evidenc e in a neutra l light, we likewise find the evidenc e fac tually sufficie nt to support the verdic t. The jury was fre e to disbelieve Appellant’s theories and explanations of how the marijuana ended up in his vehicle. See Johnson , 23 S.W .3d at 8-9. The jury

was also fre e to disbelieve Appellant’s explanations to the circ umstances surrounding his crossing

. Given the evidenc e aff

irmatively linking Appellant to the marijuana , the contra ry evidenc e was not

so strong that the verdic t was ag ainst the g rea t weig ht and preponde ranc e of the evide n ce. We

overr ule Point of Error Tw o. REVOCATION OF A P P EAL BO ND I n Point of Error Three , Appellant arg ues the trial court err ed wh en t h e j udg e revoke d his probation, for invalid rea sons, and i l l ega l ly sentenc ed him to serve time in prison without his attorney being prese nt to defe nd him in violation of his D ue Process rig hts under the United States Constit ution and the Texas Constit ution. We ag ree with the State that Appellant’s complaint about the revoc ation of his probation is wi t h out merit beca

use Appellant was never actua lly on probation. Howeve r, we cons t ru e Appellant’s complaint on appea l as challeng ing the revoc ation of his appea l bond and subsequent

re- sentenc ing. With reg ard to the a ppeal bond, we f

irst analy ze whether

Appellant wa s entitled toan appea l bond in the first place

. Then we must to look to t h e re co rd i n o rder to find whether

Appellant’s counsel was present and g iven a chance to defe nd ag ainst the revoc ation. Finally , we addre ss the order

sentenc ing A

ppellant to ten y ear s’ conf inement. Relev ant Facts Prior to the punishment phase of trial, Appellant and the State ag ree d to sentenc e Appellant to ten y ear s’ shock probation. The court g ave Appellant ten day s to take ca re of his affa irs in Fort Worth before he turne d himself in to the El Paso County J ail. The court pronounce d the sentenc e

as confine ment in prison for a period of ten y ear s, but suspended the sentenc e and place d Appellant

on adult probation for a period of ten y ear s under terms and conditions which included shock p ro b at i o n . Shock probation m eans that afte r si x months in the Tex as Department of Correc tions , depending on his behavior, Appe llant would be re -sentenc ed to straig ht probation. Appellant filed a motion for new trial which was overr uled in its entirety

. At the hear ing, the
court also hear d an oral motion for an appea l bond. The court took judicial notice that Appellant was sentenc ed to te n y ear s in pr ison a nd the appe al bond was set at $5,000 conditioned upon a diligent prosec ution of an appe al. On Marc h 7, 2007, t h e co u rt h eld a post-conviction hear ing. Neither Appellant nor his counsel wer e prese nt. The court revoke d the appea l bond afte r it was broug ht to the court’s attention that Appellant had not filed a notice of appea l. The court stated it would issue a judgme nt nisi and

a capia s for Appellant’s arr est. A status confe renc e was held on Marc h 19. Be fore defe nse counsel

arr ived, the court informed Appellant that it woul d revoke the appea l bond and order him into custody

. Attorney Serg io Gonzalez arr ived and advised the court that he had filed a notice of appea l. The court did not find it in the rec ord and asked counsel for proof of filing. Gonzalez asked the court if his secre tary

could fa x something ove r.On Marc h 21, Appellant filed his reque st for permission to appea l. At the hear ing, counsel

explained tha t the appea l w as untimely filed due a n internal off

ice e rror . The trial c ourt ruled that it no longe r had authority to act. On April 30, 2007, Appellant was rese ntence d to the penitentiary for ten y ear s. The order stated that (1) Appellant serve d six ty day s or more under the provisions of Article 42.12(e )( a) ; (2 ) he had rec eived unsatisfac tory marks from Boot Camp; and (3) the Communi ty Supervis io n D e p a r tm e n t r e c o mm e n ded that Appellant not be place d back on community

s upervision. On May 31, 2007, the court filed an order nunc pro tunc chang ing t h e wo rd “B o o t Camp” to “Shock.” On October 1, 2007, Appellant filed a pro se motion reque sting to be rele ased on probation. On Dec ember 17, he filed a pro se motion for reconsider ation of hi s reque st for shock probation. On M arc h 29, 2008, he filed a pro se application for Article 11.07 p o s t -c o n viction writ of habeas corpus, claiming that he was denied eff ective assis t ance of counsel due to Gonzalez’s failure to timely file n o t i ce of appea l. The trial court ag ree d and the Court of Criminal Appea ls ultimately g rante d Appellant’s r equest for an out-of- time appea l. Article 44.04(

b) A defe ndant may not be rele ased on bail pending an appea l from a felony conviction wher e the punishment “equa ls or ex cee ds ten y ear s confine ment.” T E X .C O D E C R I M .P R O C .AN N . art. 44.04(b)( Ver

non 2006). I n Lebo v. State , the Court of Criminal Appea ls interpre ted Article 44.04(b)
to mean that “those who are sentenc ed to ten y ear s’ actua l imprisonment ar e n o t entitled to bail pending appeal , wh i l e t h o se who are place d on ten y ear s’ [probation] may seek rele ase on bail pending appea l.” 90 S.W .3d 324, 33 0 (T ex . Crim.App. 2002). “[A]rti cle 44.04(b) prohibits the setting of bail pending appea l only when the sentenc e of imprisonment is actua lly imposed and the defe ndant would, had he not appea led, b e i m m ed i ately incar cer ated to serve his term ofimprisonment.” Id . at 326.

Her e, the pa

rties re ache d an ag ree ment as to te n y ear s’ conf inement pursuant to the shoc kprobation provisions of Section 6, art. 42.12. The trial court explained that shock probation meant that Appellant would be order ed to prison for a period of ten y ear s, but within six months, would be broug ht back to deter

mine his prog ress and, if he is doing well, then he will be place d on probation. There fore , Appellant’s ten y ear prison sentenc e was actua lly imposed and he was not entitled to an appea l bond. See T E X .C O D E C R I M .P R O C .AN N . art. 44.04(b)

. Sixth Amendm ent Right Appellant’s contention that the court revoke d his probation in the absenc e of his attorney is not suppor

ted by the rec ord. Although the re cord shows tha t Appellant’s attorne y was not pr esent initially , upon his arr ival, he was g iven an opportunity to prese nt evidenc e to the court as to why the bond should not be revoke d. Counsel w as prese nt w hen the order to r evoke the bond was enter ed.Resente nce

To the extent that Appellan t c h a ll e n g es the court’s revoc ation of the appea l bond, we overr ule his issues on appea l. Howeve r, we ag ree with the State that Appellant was never theless denied the benef it of his post-ve rdict, barg ained for opportunity for shock probation. I n essenc e, Appe llant’s plea to an a g ree d punishment was re ndere d involuntary

. I n its brie f, the State asks that in the interest of justice, we vacate Appellant’s sentenc e and

rema nd the case to the trial court for a new punishment hear ing. The State first conce des that althoug h Appellant’s ag ree d punishment is not a true plea barg ain, if the shock probation sentenc e had been a part of a true plea barg ain, the failure to aff ord Appellant the benef

it of his barg ain would rende r the plea involuntary

. I t also conce des that since 180 day s has passed since Appellant beg an serving his sentenc e, the trial court lost jurisdiction to suspend further execution of the sentenc e and place Appellant on probation, as contemplated by the shock-pr obation s t at u te. See T E X .C O D E C R I M .P R O C .AN N . art. 42.12, § 6 (Ve rnon 2006). We ag ree with the State and sustain Point of Error Three in part. I n the interest of justice, we vacate Appellant’s sentenc e and rema nd to the trial court for a new punishment hea

ring

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J une 30, 2010 ANN CRAWFORD McCL URE, J ustice Be fore Chew, C.J ., McClure, a nd Rivera, JJ

. (Do Not Publish)