Opinion issued April 10, 2014

In The

Court of Appeals 

For The 

First District of Texas 

————————————

NO. 01-12-01039-CR

———————————

KEMBERLY ANN FIELDS, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 176th District Court

Harris County, Texas

Trial Court Case No. 1364707

MEMORANDUM OPINION

Kemberly Ann Fields pleaded guilty to the second-degree felony offense of 

aggregate theft from a non-profit organization.1

 Following the punishment phase 

 1 See TEX. PENAL CODE ANN. §§ 31.03, 31.09 (West 2011).
2

of trial, the jury assessed appellant’s punishment at three years’ confinement and a 

$5,000 fine. In two points of error, appellant contends that the trial court abused 

its discretion by arbitrarily refusing to honor the parties’ plea bargain and, in doing 

so, acted contrary to the public policy favoring plea agreements. We affirm.

Background

In 2009 and 2010, appellant served as president of the local union branch of 

the Security, Police, and Fire Professionals of America (“SPFPA”), a non-profit 

organization. In the summer of 2010, the SPFPA’s international branch discovered 

missing funds in its Houston branch and contacted Shayne Geren, an investigator 

with the United States Department of Labor. In the course of his investigation, 

Geren learned that appellant had submitted fraudulent “lost time” vouchers to the 

union from December 2009 to approximately March 2010.2

 Specifically, union 

records revealed that appellant had fraudulently claimed approximately $5,600 in 

lost time when, in fact, she had earned regular pay from her employer, Diamond 

Group Security Service, for those same days.3

 Geren also discovered that 

 2 “Lost time” refers to the time a union officer spends fulfilling union duties (e.g., 

providing representation at a grievance or involvement in bargaining issues) and 

for which the union officer takes a leave of absence from her regular employment. 

The union pays the union officer for lost wages during the period of leave.

 

3 Diamond Group provides security services at the Johnson Space Center.
3

appellant had made approximately $17,600 in unauthorized cash withdrawals from 

the local union’s bank account from February to June 2010.

Appellant pleaded guilty to the charged offense and elected to have a jury 

assess her punishment.4

 At the conclusion of the punishment phase, the jury found 

appellant guilty and assessed her punishment at three years’ confinement and a 

$5,000 fine. Appellant timely filed this appeal.

Discussion

In her first point of error, appellant contends that the trial court abused its 

discretion by arbitrarily refusing to allow the parties to go through with a plea 

agreement because the trial had already been set. The State asserts that there is no 

evidence in the record that the trial court interfered with plea negotiations.

Although Texas trial judges are not expressly prohibited by statute or any 

rule of law from participating in a plea bargaining session, the Court of Criminal 

Appeals has cautioned trial judges to not participate in any plea bargain agreement 

discussions until an agreement has been reached between the prosecutor and the 

defendant. Perkins v. Third Court of Appeals, 738 S.W.2d 276, 282 (Tex. Crim. 

App. 1987) (en banc); Ex parte Shuflin, 528 S.W.2d 610, 615–17 (Tex. Crim. App. 

1975). This admonition arises because the trial judge should always avoid the 

appearance of any judicial coercion or prejudgment of the defendant since such 

 4 At the time of trial, appellant had paid back approximately $17,000 of the nearly 

$23,000 in stolen union funds.
4

influence might affect the voluntariness of the defendant’s plea. Perkins, 738 

S.W.2d at 282. However, a defendant has no absolute right to enter into a plea 

bargain. Gaal v. State, 332 S.W.3d 448, 457 (Tex. Crim. App. 2011) (citing 

Morano v. State, 572 S.W.2d 550, 551 (Tex. Crim. App. 1978)). The trial court 

remains free in every case to refuse to allow plea bargaining or to reject a 

particular plea bargain entered into by the State and the defendant. See id. at 457.

Appellant claims that the trial judge arbitrarily refused to allow the parties to 

go through with their plea agreement because the trial was already set on the 

calendar. She argues that while “this same judge allowed many other trials that 

were written in her calendar to be pled out,” the judge refused to honor the parties’ 

agreement in this case based on “whim or impulse.”

Initially, we note that appellant does not cite to any portion of the record in 

support of her contention. See TEX. R. APP. P. 38.1(h); In re J.M.C.A., 31 S.W.3d 

692, 699 (Tex. App.—Houston [1st Dist.] 2000, no pet.) (“A party asserting error 

on appeal bears the burden of showing that the record supports the contention 

raised, and of specifying the place in the record where matters upon which he relies 

or of which he complains are shown.”). Moreover, our review of the record 

reveals no evidence showing that the trial court rejected any proposed plea 

agreement. To the contrary, the record demonstrates a lack of agreement between 
5

the parties regarding a plea. At the pretrial conference, when the trial court asked 

the State for its recommendation, the following exchange took place:

[Prosecutor]: Judge, we’ve always thought straight adjudicated 

probation would be appropriate. We just simply don’t believe 

deferred adjudication is appropriate, and we’ve never discussed the 

length of [] probation.

[Court]: That’s what I remembered is that you were willing to offer 

probation—

[Prosecutor]: Yes, ma’am.

[Court]: —and she wanted deferred because I remember that I did 

discuss with you if you are found guilty at trial, nobody can be 

deferred.

[Defendant]: Yes, ma’am.

Later, at the close of evidence and before closing arguments, the following 

discussion occurred:

[Trial counsel]: Okay. Thank you. I just would like to put on the 

record that prior to selecting this jury that Ms. Fields had expressed a 

desire to plead to a [presentence investigation] and I believe the 

prosecution was unopposed to that at that time and that I’ve advised 

her of going forward with her—the risk and consequences are but that 

it was her desire and her stated intention to plead to a PSI prior to 

selecting this jury.

[Court]: Okay.

[Trial Counsel]: That’s all, Judge.

[Court]: Well, then as I pointed out several times—Ms. Fields was 

admonished several times by the Court that she had the opportunity to 

plead earlier and that had been advised that the Court would not 

entertain the deferred adjudication at that time and she wished to go to 
6

trial for that reason even though she had been offered probation. So—

all right.

Thus, the record does not support appellant’s contention that the parties had agreed 

to a plea; rather, it shows that appellant wanted deferred adjudication while the 

State was only willing to offer probation.

We note that appellant filed a motion for new trial in which she argued that 

“[t]he defendant in this case [] wished to plead guilty to this charge and the 

prosecution had agreed to plead to a PSI hearing. However, the judge would not 

allow the Defendant to waive her right to a jury trial in this case.” Appellant, 

however, failed to request a hearing on her motion and, therefore, did not place 

evidence of the alleged plea bargain rejection into the appellate record. Absent any 

evidence to support appellant’s contention that there was a plea agreement, we 

overrule her first point of error.5

 5 In light of our disposition of her first point of error, we do not reach appellant’s 

second point of error pertaining to the public policy favoring plea bargaining.
7

Conclusion

We affirm the trial court’s judgment.

Jim Sharp

Justice 

Panel consists of Justices Jennings, Higley, and Sharp.

Do not publish. TEX. R. APP. P. 47.2(b).