Andre Glenn v. State of Texas

NO. 12-01-00105-CR

IN THE COURT OF APPEALS

TWELFTH COURT OF APPEALS DISTRICT

TYLER, TEXAS

ANDRE GLENN, §

APPEAL FROM THE SECOND

APPELLANT

V. §

JUDICIAL DISTRICT COURT OF

THE STATE OF TEXAS,

APPELLEE §

CHEROKEE COUNTY, TEXAS

Andre Glenn ("Appellant") appeals from the trial court's order revoking his probation and

sentencing him to ten years of confinement. In four issues, Appellant complains that the order

incorrectly states he was found guilty of a second degree felony, the trial court erred in assessing a

sentence in excess of the prosecutor's recommendation, the trial court erred in failing to find him

competent to enter a plea of true, and the evidence is factually insufficient to support the revocation.

We modify the trial court's order to reflect that the offense Appellant was convicted of was a third

degree felony and that the trial court made a deadly weapon finding. We affirm the order as

modified.

Background

Appellant was indicted for aggravated assault committed on March 6, 1994. Pursuant to a

plea bargain agreement, he pleaded guilty in exchange for deferred adjudication probation. A year

later, Appellant pleaded true to the allegations in the State's motion to revoke probation. The trial

court entered an order adjudicating guilt and sentenced Appellant to ten years of imprisonment,

probated for ten years. About a year-and-a-half later, the trial court revoked his probation and

sentenced him to ten years of imprisonment, including placement in the state boot camp program.

After Appellant successfully completed boot camp, the trial court again placed him on probation.

Finally, almost seven years after the commission of the offense, the trial court revoked Appellant's

probation and sentenced him to ten years of imprisonment.

Variance

In his first issue, Appellant contends there is a fatal variance between the order revoking his

probation and the judgment adjudicating guilt. Specifically, he complains that the judgment

adjudicating his guilt recites that he was found guilty of a third degree felony while the order

revoking probation indicates he was found guilty of committing a second degree felony.

In violation of penal code section 22.02, Appellant committed aggravated assault on March

6, 1994. Although previously aggravated assault was a third degree felony, the legislature amended

section 22.02 in 1993 making an offense under that section a second degree felony. Act of May 27,

1993, 73d Leg., ch. 900, § 1.01, sec. 22.02, 1993 Tex. Gen. Laws 3589 , 3622 (now codified at Tex.

Pen. Code Ann. § 22.02 (Vernon 1994)). However, that amendment did not take effect until

September 1, 1994. Act of May 27, 1993, 73d Leg., R.S., ch. 900, § 1.19(a), 1993 Tex. Gen. Laws.

3589, 3708. The prior law applies to all offenses committed before September 1, 1994. Act of May

27, 1993, 73d Leg., R.S., ch. 900, § 1.18, 1993 Tex. Gen. Laws 3589 , 3708. Accordingly, at the time

Appellant committed the offense, March 6, 1994, it was punishable as a third degree felony. The

punishment range for a third degree felony is imprisonment for a term of not more than ten years and

not less than two years and a fine of up to $10,000.00. Tex. Pen. Code Ann. § 12.34 (Vernon

1994).

While the revocation order identifies the offense as a second degree felony, Appellant was

actually convicted of a third degree felony. However, the sentence imposed, ten years of

imprisonment, is within the range of punishment for a third degree felony. See id . The error is a

clerical error which did not harm Appellant. An appellate court may modify a judgment to correct

a mere clerical error. Asberry v. State , 813 S.W.2d 526, 529-30 (Tex. App.- Dallas 1991, pet. ref'd).

Accordingly, the judgment is modified to identify the offense as a "THIRD" degree felony rather

than a "SECOND" degree felony. As the variance between the order adjudicating his guilt and the

order revoking his probation is not fatal, we overrule Appellant's first issue.

The Sentence

In his second issue, Appellant contends the trial court abused its discretion in sentencing him

to a term that exceeds the State's recommendation of a six-year term of confinement. He asserts that

he intended to enter into a plea agreement for a six-year term upon the revocation of his most recent

probation. He argues that the imposition of a greater sentence resulted in prejudice. Finally, he

argues that, pursuant to code of criminal procedure article 26.13(a)(2), because the court rejected the

agreement, he should have been given the opportunity to withdraw his plea of true to the allegations

in the motion to revoke probation.

A promise or agreement by the prosecutor must be enforced if it induced or is consideration

for the defendant's plea. Santobello v. New York , 404 U.S. 257, 262 , 92 S. Ct. 495, 599 , 30 L. Ed.

2d 427 (1971). Accordingly, to address Appellant's issue, we must first determine if there was a plea

bargain agreement as the trial court cannot be expected to enforce that which does not exist.

Appellant does not definitively assert that there was a plea bargain at this juncture, but merely

that he intended to enter into a plea bargain. At the hearing, Appellant said he was pleading true to

the allegations in the State's motion only because they are true and for no other reason. The State

recommended a six-year term and Appellant's attorney said, "We would join in that

recommendation." There was no mention of a plea bargain at the hearing. The record does not

include plea papers in connection with this motion to revoke. The order revoking probation makes

no mention of a plea bargain. Further, Appellant did not complain at the time of sentencing or in

a motion for new trial that the trial court failed to follow a plea bargain. In short, the record does not

even hint at the existence of a plea bargain agreement. Therefore, the trial court was not required

to assess a six-year term of imprisonment. See Rodriquez v. State , 509 S.W.2d 319, 320-21 (Tex.

Crim. App. 1974) (trial court's six-year sentence not improper where there was no agreement, but

only discussion of a four-year term of imprisonment).

Further, in addition to the fact that no agreement existed, code of criminal procedure article

26.13 does not apply to pleas to a motion to revoke probation following conviction. Harris v. State ,

505 S.W.2d 576, 578 (Tex. Crim. App. 1974). Therefore, that statute cannot provide a basis for

Appellant to withdraw his plea.

We review a sentence imposed by the trial court under an abuse of discretion standard. See

Jackson v. State , 680 S.W.2d 809, 814 (Tex. Crim. App. 1984). As a general rule, a penalty

assessed within the proper punishment range will not be disturbed on appeal. Id . If a defendant

pleads guilty in exchange for the prosecution's recommendation that he receive deferred

adjudication, a trial court does not exceed that recommendation if he later assesses any punishment

within the range allowed by law upon proceeding to adjudication. Vidaurri v. State , 49 S.W.3d 880,

885 (Tex. Crim. App. 2001). The ten-year term, which is within the punishment range for a third

degree felony, is appropriate. Jackson , 680 S.W.2d at 814 . The trial court did not abuse its

discretion in sentencing Appellant to a term of imprisonment for ten years. We overrule Appellant's

second issue.

Mental Competence

In his third issue, Appellant asserts that the trial court erred in failing to find that he was

mentally competent to enter a plea of true to the State's application for revocation. Citing code of

criminal procedure article 26.13(b), Appellant argues that a plea of true to an application for

revocation has the same effect as a plea of guilty and, therefore, the trial court abused its discretion

by accepting his plea of true without making a determination of whether he was competent to enter

the plea.

As explained above, article 26.13 does not apply to probation revocation proceedings.

Harris , 505 S.W.2d at 578 . Even if the statute applied, a trial court need not inquire into the

competence of the defendant unless the issue is raised at the time of the plea. Kuyava v. State , 538

S.W.2d 627, 628 (Tex. Crim. App. 1976). No issue as to Appellant's mental competence was raised

at the probation revocation hearing. Further, the order revoking probation recites that it appeared

to the trial court that Appellant was mentally competent and understood the proceeding. We overrule

Appellant's third issue.

Factual Sufficiency

In his fourth issue, Appellant contends the evidence is factually insufficient to support the

revocation. Appellant urges this court to apply the factual sufficiency standard of review set out in

Clewis v. State , 922 S.W.2d 126 (Tex. Crim. App. 1996) to determine that there is no sworn,

adequate testimony or other evidence to support the revocation.

As have other intermediate appellate courts, we decline to apply the Clewis factual

sufficiency review to the review of a revocation order. See Becker v. State , 33 S.W.3d 64, 66 (Tex.

App.- El Paso 2000, no pet.); Joseph v. State , 3 S.W.3d 627, 642 (Tex. App.- Houston [14th Dist.]

1999, no pet.); Johnson v. State , 2 S.W.3d 685, 687 (Tex. App.- Fort Worth 1999, no pet).

Examination of the revocation order for factually sufficient evidence is inappropriate given the trial

court's wide discretion and the unique nature of probation revocation proceedings. Becker , 33

S.W.3d at 66 .

Appellate review of an order revoking probation is limited to determining whether the trial

court abused its discretion. Cardona v. State , 665 S.W.2d 492, 493 (Tex. Crim. App. 1984). The

sufficiency of the evidence to sustain an order revoking probation cannot be challenged in the face

of a plea of true to the motion to revoke. Cole v. State , 578 S.W.2d 127, 128 (Tex. Crim. App.

1979). A plea of true, standing alone, is sufficient to support the revocation of probation. Id .

Accordingly, as Appellant entered a plea of true to the State's application for probation revocation,

he cannot now attack the sufficiency of the evidence to support the order of revocation. We overrule

Appellant's fourth issue.

Deadly Weapon

Finally, we must address an error in the order noted by Appellant but not asserted as an issue

for our review. Appellant pleaded guilty to aggravated assault by shooting at an individual with a

firearm. When the trial court adjudicated guilt, it made a deadly weapon finding and entered it onto

the order adjudicating guilt and placing Appellant on community supervision. At the hearing on the

State's motion to revoke probation, the trial court orally pronounced a finding of use of a deadly

weapon. However, the order revoking probation reflects an entry of "-0-" in the space designated

for the deadly weapon finding.

The code of criminal procedure requires that upon an affirmative finding that a deadly

weapon was used or exhibited, the trial court shall enter the finding in its judgment. Tex. Code

Crim. Proc. Ann. art. 42.12, § 3g(a)(2) (Vernon Supp. 2002). Omission of the deadly weapon

finding from the judgment was a clerical error. Asberry , 813 S.W.2d at 530 . This court has the

authority to, sua sponte, modify judgments to correct clerical errors when we have the necessary

information before us to do so. Id . at 529-30. Accordingly, we modify the trial court's order to

include an affirmative finding that Appellant used or exhibited a deadly weapon during the

commission of the offense.

As modified , we affirm the trial court's order of revocation.

LEONARD DAVIS

Chief Justice

Opinion delivered March 20, 2002.

Panel consisted of Davis, C.J., Worthen, J., and Griffith, J.

(DO NOT PUBLISH)