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Date: 01-16-2018

Case Style:

Sergio Gonzalez v. The State of Texas

Case Number: 05-17-00225-CR

Judge: Jason Boatright

Court: Court of Appeals Fifth District of Texas at Dallas

Plaintiff's Attorney: Faith Johnson and Jaclyn O'Connor Lambert

Defendant's Attorney: Riann C. Moore - Public Defender's Office

Description: 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.


–3–
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 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.
The judge did not make an admonition in that exchange; she suggested that she would make her
ruling in the future.
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


–4–
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.


–5–
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.”


–6–
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.

Outcome: 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.

Plaintiff's Experts:

Defendant's Experts:

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