Lundgren, Jerry Paul

IN THE COURT OF CRIMINAL APPEALS

OF TEXAS

NO. PD-1322-13

JERRY PAUL LUNDGREN, Appellant v.

THE STATE OF TEXAS

ON APPELLANT’S PETITION FOR DISCRETIONARY REVIEW

FROM THE SECOND COURT OF APPEALS

WISE COUNTY

K ELLER, P.J., filed a concurring opinion.

I join the Court’s opinion, but I write to point out that the State had at least two options that could have allowed it to avoid the situation it now faces. When appellant filed a motion for new trial, the State could have agreed to it and made sure that it was presented to the trial court. It appears that appellant’s sole purpose in filing the motion for new trial was to retroactively extend the start date of his probation. Nevertheless, the motion for new trial was a request to rescind the plea agreement, and if the State had agreed to that request, then the trial court could have granted the LUNDGREN - 2 motion and undone the plea agreement.1 Undoing the plea agreement might not be as favorable to the State as pursuing revocation proceedings, but it would give the State the chance to seek a sentence of incarceration.

The State could also have avoided its current predicament if the plea agreement had included a waiver of the right to file a motion for new trial. We have held that a defendant can, in at least some circumstances, waive the right to appeal as part of an agreement with the State,2 though the waiver of post-conviction remedies may be ineffective in the face of a claim that could not have been anticipated at the time the waiver occurred.3 Logically, the same should be true of the right to file a motion for new trial. In the absence of an allegation, in the motion for new trial, of an unforeseeable claim, the waiver would render the motion ineffective with respect to delaying the finality of the judgment.

Filed: June 25, 2014

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