Opinion
No. 05-17-00225-CR
01-11-2018
SERGIO GONZALEZ, Appellant v. THE STATE OF TEXAS, Appellee
On Appeal from the Criminal District Court No. 2 Dallas County, Texas
Trial Court Cause No. F-1658674-I
MEMORANDUM OPINION
Before Justices Francis, Evans, and Boatright
Opinion by Justice Boatright
Appellant waived a jury trial and entered an open plea of guilty to the charge of possession with intent to deliver four grams or more but less than 200 grams of methamphetamine. Appellant also pleaded true to two enhancing felonies. The trial court found him guilty, found the enhancement paragraphs to be true, and assessed his punishment at twenty-five years' confinement. In this Court appellant asserts (1) that he was not properly admonished concerning the range of punishment he faced, (2) that his punishment violates the objectives of the justice system promoted by the Texas Penal Code, and, alternatively, (3) that his judgment incorrectly reflects (a) the offense for which he was convicted and (b) the nature of his plea. We modify the judgment to correct those inaccuracies; as modified, we affirm.
Admonishments Concerning Range of Punishment
In his first issue, appellants contends he was not properly admonished concerning the range of punishment he would face if he pleaded guilty. Before the plea hearing, appellant received written admonishments, which recited that he was charged with a first degree felony with a punishment range of "5-99 years or Life and an optional fine not to exceed $10,000.00." At the hearing, the trial judge explained that given the enhancement paragraphs to which appellant had pleaded true, the minimum sentence she could impose was twenty-five years. Appellant complains that the written admonishment gave the incorrect minimum punishment, the oral admonishment gave no maximum punishment, and he was not admonished at all about the possibility of community service. Appellant argues that in the absence of proper admonitions, his plea was not voluntary.
Before accepting a guilty plea, the trial court must admonish the defendant "of the range of punishment attached to the offense." TEX. CODE CRIM. PROC. ANN. art. 26.13(a)(1) (West Supp. 2017). Appellant's written admonishment gave the proper range of punishment for an unenhanced first degree felony, TEX. PENAL CODE ANN. § 12.32 (West 2011), which in turn was the proper level of offense given the amount of contraband appellant possessed when arrested. TEX. HEALTH & SAFETY CODE ANN. § 481.112(d) (West 2017). However, when enhanced by two felonies under the circumstances of this case, the proper range of punishment became either life or twenty-five to ninety-nine years. TEX. PENAL CODE ANN. § 12.42(d) (West Supp. 2017). Thus the trial court's oral admonishment warned appellant of the proper minimum punishment. But although the trial judge emphasized the twenty-five year minimum twice at the hearing—and both times appellant assured the judge that he understood the minimum was twenty-five years—the judge made no reference at the hearing to the maximum sentence appellant could receive.
In making article 26.13 admonishments, substantial compliance by the trial court is sufficient, unless the defendant affirmatively shows that he was not aware of the consequences of his plea and that he was misled or harmed by the admonishment of the court. TEX. CODE CRIM. PROC. ANN. art. 26.13(c). A trial court's admonishment substantially complies with article 26.13 if the record shows that the sentence given lies within both the correct range of punishment and the misstated range of punishment. Luckett v. State, 394 S.W.3d 577, 581 (Tex. App.—Dallas 2012, no pet.). Here, appellant's twenty-five-year sentence lies within the range given by the trial court's written admonishments and is the precise punishment the judge explained was the minimum she could assess. We conclude the trial court substantially complied with its obligation to admonish appellant of the range of punishment attached to his offense.
Our conclusion is not affected by the fact that appellant was not admonished concerning community supervision. As he acknowledges, a trial court has no general duty to admonish as to the availability of probation. Harrison v. State, 688 S.W.2d 497, 499 (Tex. Crim. App. 1985). But appellant points to a brief exchange between the judge and himself, in which he contends the trial court incorrectly admonished him about probation:
THE COURT: Do you understand that by pleading guilty and true to the way that it's alleged, the minimum I can give you is 25 years?The judge did not make an admonition in that exchange; she suggested that she would make her ruling in the future.
THE DEFENDANT: Okay. But there is also a chance that I can get -- with an open plea I can get probation. Is that true?
THE COURT: Well, we will see.
Because the court substantially complied with its duty to admonish, appellant had to demonstrate that he was not aware of the consequences of his plea and that he was misled or harmed by the court's admonishment. TEX. CODE CRIM. PROC. ANN. art. 26.13(c). We examine the entire record for any suggestion that appellant did not know the range of punishment to which he would be subject if the enhancements alleged were proved. Luckett, 394 S.W.3d at 581. But appellant has made no showing that he did not know the correct range of punishment attached to his offense. Indeed, the record indicates that appellant was aware of the consequences of his plea and was not misled by the court's imperfect admonishments. Appellant testified at the plea hearing and stated that he had rejected a fifteen-year plea agreement in hopes of receiving community service from the trial court. And he testified repeatedly that (1) he understood that twenty-five years was the minimum sentence the judge could assess him, and (2) even if he were given probation, but "messed up," twenty-five years would be the minimum sentence the judge could give him at revocation. Appellant has not alleged or proved that he would not have entered the guilty plea had he been correctly and completely admonished either in writing or orally. We conclude he has failed to show that he was misled or harmed by maintaining his guilty plea. As a result, he has not demonstrated that his guilty plea was involuntary.
We overrule appellant's first issue.
Objectives of Punishment in the Texas Penal Code
In his second issue, appellant argues that his punishment violates the objectives of the Penal Code.
The code states that its general purposes are to establish a system of prohibitions, penalties, and correctional measures to deal with conduct for which state protection is appropriate. TEX. PENAL CODE ANN. § 1.02 (West 2011). "To this end, the provisions of this code are intended, and shall be construed, to achieve" six objectives. Id. The first of these is to ensure public safety through deterrence, rehabilitation, and punishment. Id. § 1.02(1). Appellant argues that his sentence "is merely punitive and does not further the Penal Code's goal of rehabilitation" and therefore violates section 1.02.
Appellant concedes that his sentence is the minimum for this enhanced offense and is therefore within the prescribed range of punishment. Generally, punishment that is assessed within the statutory range for an offense will not be disturbed on appeal. Jackson v. State, 680 S.W.2d 809, 814 (Tex. Crim. App. 1984). The exceptions to this general rule are extremely limited, and have to do with issues that appellant has not raised, like gross-disproportionality under the Eighth Amendment of the U.S. Constitution. Ex parte Chavez, 213 S.W.3d 320, 324 (Tex. Crim. App. 2006).
We review the trial court's assessment of punishment for an abuse of discretion. Jackson, 680 S.W.2d at 814. Finding none, we do not disturb appellant's sentence.
We overrule his second issue.
Inaccuracies in the Judgment
In his third and fourth issues, appellant contends the trial court's judgment contains inaccuracies, and he asks us to correct them by modifying the judgment. The judgment states that appellant was convicted for "MANTURFACTING [sic] DELIVERY OF A CONTROLLED SUBSTANCE: TO-WIT; METHAMPHETAMINE PGl." Although the statute under which appellant was charged is titled "Manufacture or Delivery of Substance in Penalty Group 1," that statute is not limited in scope to the actions of manufacturing and delivery of certain controlled substances; it also criminalizes possession with intent to deliver the same substances. TEX. HEALTH & SAFETY CODE ANN. § 481.112(a). Appellant's indictment alleged that he did "knowingly possess with intent to deliver, a controlled substance" that is listed in Penalty Group 1. We have the authority to modify an incorrect judgment so that the record "speak[s] the truth" when the record contains the information necessary to do so. Estrada v. State, 334 S.W.3d 57, 63 (Tex. App.—Dallas 2009, no pet.). Accordingly, we modify the trial court's judgment to reflect that appellant was convicted for "Possession with intent to deliver a controlled substance listed in Penalty Group 1."
The judgment also recites that appellant entered into a plea bargain, agreeing to a term of "25 YEARS PENITENTIARY." The record shows appellant entered an open plea of guilty and true to the allegations in the indictment. We modify the section of the judgments entitled "Terms of Plea Bargain" to state "Open." Id.
We sustain appellant's third and fourth issues.
Conclusion
We modify the trial court's judgment to reflect that appellant entered an open plea and that he was convicted for possession with intent to deliver a controlled substance listed in Penalty Group 1. As modified, we affirm the trial court's judgment.
/Jason Boatright/
JASON BOATRIGHT
JUSTICE Do Not Publish
TEX. R. APP. P. 47 170225F.U05
JUDGMENT
On Appeal from the Criminal District Court No. 2, Dallas County, Texas
Trial Court Cause No. F-1658674-I.
Opinion delivered by Justice Boatright. Justices Francis and Evans participating.
Based on the Court's opinion of this date, the judgment of the trial court is MODIFIED as follows:
Offense for which Defendant Convicted: Possession with intent to deliver a controlled substance listed in Penalty Group 1As MODIFIED, the judgment is AFFIRMED. Judgment entered this 11th day of January, 2018.
Terms of Plea Bargain: Open