Roberto Gonzalez A/K/A Robert Reyna Gonzalez v. State

NUMBER 13-11-00059-CR

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI -

EDINBURG

ROBERTO GONZALEZ A/K/A ROBERT

REYNA GONZALEZ, Appellant,

v.

THE STATE OF TEXAS,

Appellee.

On appeal from the 156th District

Court

of Bee County, Texas.

MEMORANDUM OPINION

Before Chief Justice Valdez and

Justices Rodriguez and Garza

Memorandum Opinion by

Chief Justice Valdez

Appellant, Roberto

Gonzalez a/k/a Robert Reyna Gonzalez, pursuant to a plea agreement with the

State, pleaded guilty to one count of attempted aggravated assault and one

count of attempted indecency with a child by contact. See Tex. Penal Code Ann . § 15.01 (West 2003),

§§ 21.11, 22.021 (West Supp. 2010). The trial court deferred adjudication and

placed Gonzalez on community supervision for a period of ten years.

Subsequently, the trial court revoked Gonzalez’s community supervision and imposed

sentences of five years’ confinement for each count. By three issues, Gonzalez

contends: (1) the trial court should have, sua sponte, withdrawn Gonzalez’s

plea of “true” to the State’s allegations at the revocation hearing; (2) the

trial court violated his due process rights by cumulating the sentences in the

judgment; and (3) the trial court lacked the statutory authority to cumulate

the sentences in this case. We modify and affirm the judgment as modified.

I. Background

On August 31, 2010, the State filed a

motion to revoke Gonzalez’s community supervision alleging, among other things,

that Gonzalez had violated the terms and conditions of community supervision by

failing to complete sex offender treatment. At the revocation hearing, the

trial court informed Gonzalez that if it determined that he had violated the

terms of community supervision, the trial court could revoke his community

supervision, and that the range of punishment was two to twenty years’

confinement for the attempted aggravated assault and two to ten years for the

attempted indecency with a child by contact. Gonzalez stated that he

understood the range of punishment. Gonzalez also stated that he understood

the terms of his community supervision and that the State had filed a motion to

revoke the community supervision. Gonzalez informed the trial court that he

understood that the State had filed the motion to revoke because it claimed

that he was “[n]ot going to class.”

Gonzalez then pleaded

“true” to the State’s allegations that he had failed to attend and complete the

Sex Offender Therapy Program. The trial court admitted State’s Exhibit 2, a stipulation

of evidence signed by Gonzalez judicially confessing to “All facts and

allegations regarding the violations of [his] community supervision” as

described by Keane Monroe, a probation officer, in an affidavit attached as

“Exhibit A” to his stipulations. [1]

In the affidavit, Monroe stated that Gonzalez had failed to attend and complete

the Sex Offender Therapy Program as ordered by the terms of his community

supervision. Gonzalez told the trial court that his attorney explained the

stipulation of evidence to him and that he understood that he was admitting

that he did “something wrong.” The trial court then accepted Gonzalez’s plea

of “true” and found the allegations to be true.

The trial court heard evidence

from Monroe that Gonzalez had missed eleven sessions of therapy. However, on

two of those occasions, Gonzalez showed up for his therapy session, but could

not pay and was turned away. After hearing the evidence, the trial court

revoked Gonzalez’s community supervision and orally pronounced a sentence of

two five-year terms to run concurrently. The judgment, however, states that

the terms are to run consecutively. This appeal ensued.

II. Withdrawal of Plea of True

We review the trial court’s decision

to revoke a defendant’s community supervision under an abuse of discretion

standard. Rickels v. State , 202 S.W.3d 759, 763 (Tex. Crim. App. 2006);

Herrera v. State , 951 S.W.2d 197, 199 (Tex. App.—Corpus Christi 1997, no

pet.). We review the evidence presented at the revocation hearing in the light

most favorable to the trial court’s ruling. Jones v. State , 112 S.W.3d

266, 268 (Tex. App.—Corpus Christi 2003, no pet.). A plea of “true” standing

alone is sufficient to support revocation of community supervision. Id.

By his first issue, Gonzalez contends that

the trial court should have sua sponte withdrawn his plea of true. Gonzalez

argues that he did not fail to attend his therapy sessions because he attended

“over 60 out of approximately 75 therapy sessions,” he was “refused treatment

on two occasions because of his inability to pay for the treatments,” and he

did not own a car. Gonzalez reasons that it is “unjust” to find that he

violated the terms of community supervision under these circumstances.

We are not persuaded by Gonzalez’s

arguments. Here, Gonzalez pleaded “true” to failing to attend and complete the

sex offender therapy sessions. Gonzalez’s plea of true standing alone was

sufficient to support the trial court’s finding that Gonzalez had violated the

terms and conditions of community supervision. See Jones , 112

S.W.3d at 268 . Gonzalez cites no authority, and we find none, requiring a

trial court to sua sponte withdraw a plea of “true” at a revocation hearing. [2] See

Gutierrez v. State , 108 S.W.3d 304, 309-10 (Tex. Crim. App. 2003) (en banc)

(setting out that the legislature has not authorized in the context of

revocation proceedings a right for a defendant to withdraw a plea of “true”); Moses

v. State , 590 S.W.2d 469, 470 (Tex. Crim. App. 1979) (“[T]here is no duty

upon a trial court to withdraw a plea of true in a revocation of probation

proceeding even if a probationer presents a defensive issue.”). Moreover, although

Monroe acknowledged that Gonzalez was refused treatment for two therapy

sessions due to lack of payment, Monroe testified that Gonzalez failed to

attend nine therapy sessions. [3]

Therefore, viewing the

evidence in the light most favorable to the trial court’s ruling, we conclude

that the trial court did not abuse its discretion by not sua sponte withdrawing

Gonzalez’s plea of true and by finding that Gonzalez violated the terms of

community supervision by failing to attend the sex offender therapy sessions. See

Herrera , 951 S.W.2d at 199 (“[A] single violation of a condition of

community supervision is sufficient to support the trial court’s decision to

revoke.”). We overrule Gonzalez’s first issue.

III. Cumulative Sentences

By his second and third issues, which

Gonzalez has briefed as one, he contends that the trial court violated his

“right to due process in issuing a written judgment cumulating the sentences in

this case when concurrent sentences had been orally pronounced in court,” and

“[t]he trial court lacked any statutory authority to cumulate the sentences in

this case.” The State concedes that Gonzalez’s second and third issues are

meritorious and requests that we modify the judgment.

“A trial court’s pronouncement of

sentence is oral, while the written judgment, including the sentence assessed,

is merely the embodiment of that oral pronouncement.” Ex parte Madding ,

70 S.W.3d 131, 135 (Tex. Crim. App. 2002). Therefore, when the oral

pronouncement of sentence and the written judgment vary, the oral pronouncement

controls. Coffey v. State , 979 S.W.2d 326, 328 (Tex. Crim. App. 1998).

A trial court that wishes to impose cumulative sentences must make such an

order at the time and place that sentence is orally pronounced. Madding ,

70 S.W.3d at 136 ; Ex parte Vasquez , 712 S.W.2d 754, 755 (Tex. Crim. App.

1986). “A trial court does not have discretion or the statutory authority to

orally pronounce one sentence in front of the defendant, but enter a different

sentence in its written judgment, outside the defendant’s presence.” Madding ,

70 S.W.3d at 136 .

The record reflects that

at the revocation hearing, the trial court orally pronounced that Gonzalez’s

sentences of five years for each count would run concurrently. However, the

written judgment states that the two sentences were to run consecutively. We

conclude that Gonzalez’s due process rights were violated because the trial

court did not have the statutory authority or discretion to orally pronounce

one sentence and enter a different sentence in its written judgment. See

id. at 136-37 (concluding that the judgment cumulating the sentences after

oral pronouncement that sentences would run concurrent violated the appellant’s

right to due process and modifying judgment to reflect that the sentences run

concurrently). We sustain Gonzalez’s second and third issues. See id.

Accordingly, we modify the judgment to reflect that the sentences run

concurrently. See Tex. R. App. P .

43.2(b); Madding , 70 S.W.3d at 136-37 ; see also French v. State ,

830 S.W.2d 607, 609 (Tex. Crim. App. 1992) (“[A]n appellate court has authority

to reform a judgment to include an affirmative finding to make the record speak

the truth when the matter has been called to its attention by any source.”).

IV. Conclusion

We affirm the judgment as modified.

_____________________

Rogelio Valdez

Chief

Justice

Do not

Publish.

Tex. R. App. P . 47.2(b)

Delivered and filed the

21st day of July, 2011.

[1]

Gonzalez stated in his stipulation of evidence that Monroe’s affidavit is

“marked as Exhibit A and incorporated herein and made a part hereof for all purposes.”

[2]

Gonzalez claims that Moon v. State , 572 S.W.2d 681, 681 (Tex. Crim. App.

1978), stands for the proposition that before accepting a plea of “true” at a

revocation hearing, the trial court must “consider the evidence submitted” and

“may find the State’s allegations to be not true,” despite the defendant’s plea

of “true.” Moon does not pertain to a revocation hearing or a

defendant’s plea of true. Instead, the court in Moon “held that when

the defendant waives a jury trial and pleads guilty to the trial court, the

trial court has no duty to withdraw the plea sua sponte even if the evidence

raises defensive issues.” Cole v. State , 578 S.W.2d 127, 128 (Tex.

Crim. App. 1979). Therefore, Moon is inapplicable to our analysis.

[3]

At the revocation hearing, defense counsel, in closing argument, stated that

Gonzalez had missed nine sessions.