Opinion
No. 04-15-00742-CR
08-24-2016
Virginia KASKA, Appellant v. The STATE of Texas, Appellee
MEMORANDUM OPINION
From the 227th Judicial District Court, Bexar County, Texas
Trial Court No. 1991CR6474B
Honorable Raymond Angelini, Judge Presiding Opinion by: Marialyn Barnard, Justice Sitting: Sandee Bryan Marion, Chief Justice Marialyn Barnard, Justice Luz Elena D. Chapa, Justice AFFIRMED AS MODIFIED
The Honorable Raymond Angelini, sitting by assignment.
Appellant Virginia Kaska appeals from the trial court's judgment adjudicating her guilty and sentencing her to confinement for eight years. On appeal, Kaska contends the trial court erred in failing to: (1) inquire as to the existence of a plea agreement and whether Kaska understood its terms; and (2) pronounce orally the revocation and adjudication of guilt. We affirm the trial court's judgment as modified.
BACKGROUND
Kaska was indicted for indecency with a child by contact. Pursuant to a plea agreement, Kaska entered a plea of nolo contendere. In accordance with the plea agreement, the trial court deferred a finding of guilt and placed Kaska on deferred adjudication community supervision for a term of ten years. The trial court also assessed a fine of $1,500.00.
Subsequently, the State filed a motion to adjudicate, alleging Kaska violated numerous terms of her community supervision. Kaska agreed to plead true to four of the State's allegations if the State would agree to recommend a sentence of eight years and dismiss a pending indictment that alleged Kaska violated the sex offender registration statute. At the hearing on the motion to adjudicate, after the State read the first alleged violation, Kaska pled "true." At that point, the trial court asked Kaska if she understood that based on a plea of true the court could "send [her] to prison." Kaska responded, "Yes." The State then read the remaining three allegations and Kaska pled true to each one. The trial court, based on Kaska's pleas, found each alleged violation true. Thereafter, the State advised the trial court about the parties' agreement with regard to a sentencing recommendation. The trial court then stated, "I give her eight years TDC," noting he would give Kaska credit for time served. There was no specific oral pronouncement of revocation and adjudication.
Ultimately, the trial court signed a final judgment adjudicating Kaska guilty based on her pleas of true and sentencing her to confinement for eight years and a $1,500.00 fine. Kaska timely perfected this appeal.
ANALYSIS
As noted above, Kaska raises two complaints on appeal. First, Kaska contends the trial court erred in failing to inquire at the revocation hearing about the existence of a plea agreement and whether Kaska understood and agreed to the terms of any such agreement. Second, she contends the trial court erred in failing to pronounce orally the revocation of community supervision and the adjudication of guilt.
"Plea Bargain" Inquiry
Kaska first contends the trial court was required to obtain a "confirmation and assent" from Kaska to the terms of her agreement with the State. To support her contention, Kaska relies on article 26.13 of the Texas Code of Criminal Procedure. That article provides that before accepting a plea of guilty or nolo contendere, a trial court must inquire whether there is a plea agreement and if there is, must advise the defendant in open court whether it will follow or reject the agreement. TEX. CODE CRIM. PROC. ANN. art. 26.13(a)(2) (West 2016). The court must make the inquiry and advise the defendant of its intent before making any finding on the plea. We disagree with Kaska's contention that article 26.13 applies here.
By its terms, the admonishments set out in article 26.13 are to be given before a court accepts a plea of "guilty" or "nolo contendere." Id. art. 26.13(a). The statute does not mention pleas of "true," which are made in revocation proceedings. In Gutierrez v. State, the Texas Court of Criminal Appeals recognized this, holding article 26.13 is inapplicable to probation-revocation proceedings. 108 S.W.3d 304, 309 (Tex. Crim. App. 2003). The court noted that article 42.12 of the Code of Criminal Procedure, which governs probation proceedings makes no reference to article 26.13. Id. (citing TEX. CODE CRIM. PROC. ANN. art. 42.12). Given the absence of any reference to article 26.13, it follows that the legislature "has not required the court to inquire as to the existence of a plea agreement or admonish the defendant pursuant to article 26.13." Id. The court reasoned that perhaps the legislature declined to require the admonishments set out in article 26.13 in revocation proceedings because "the benefits of plea-bargaining are not so great in probation-revocation proceedings" because such proceedings require fewer judicial resources than trial by jury, the time and expense required is less, fact issues are usually less complex, and the burden of proof is lower. Id. at 310. Thus, the court essentially held there are no actual plea bargain agreements in revocation proceedings; however, the State is still required to make any agreed-upon sentencing recommendation to the trial court. Id.
Based on the court's holding in Gutierrez, we hold the trial court was not required to inquire as to the existence of any plea agreement before accepting Kaska's plea of "true," nor was it required to obtain a "confirmation and assent" from Kaska regarding the State's sentencing recommendation. We therefore overrule Kaska's first issue.
In a single sentence within the first issue, Kaska also contends the judgment should have included the terms of the plea agreement pursuant to article 42.01 of the Code of Criminal Procedure. See TEX. CODE CRIM. PROC. ANN. art. 42.01, § (20). That article provides that judgments shall include the terms of any plea bargain. However, as noted in our discussion of issue one, the Gutierrez court held there are no true plea agreements in revocation proceedings; rather, there are merely agreed sentencing recommendations. See 108 S.W.3d at 309-10. --------
Failure to Orally Pronounce Revocation and Adjudication
Kaska next contends the trial court erred in failing to pronounce orally the revocation or her deferred adjudication community supervision and likewise failed to pronounce orally the adjudication of guilt. In support of this complaint, Kaska relies upon Taylor v. State, 131 S.W.3d 497 (Tex. Crim. App. 2004). However, Taylor does not support Kaska's contention.
In Taylor, the defendant pled guilty pursuant to a plea agreement and received ten years' deferred adjudication community supervision and a $300.00 fine. Id. at 498. When the defendant entered his plea, the trial court advised the defendant that the fine needed "to be paid as a term and condition of probation." Id. The trial court also advised him that a violation of any term of his probation permitted the court to adjudicate his guilt and sentence him to imprisonment for not less than two and not more than twenty years and a fine of up to $10,000.00. Id. Later, the State moved to adjudicate guilt, asserting among other things that the defendant had violated the terms of his deferred adjudication community supervision by failing to pay the $300.00 fine. Id. at 499.
The defendant entered a plea of true to the State's allegations, admitting he failed to pay the $300.00 fine. Id. At the hearing on the motion to adjudicate, the trial court granted the State's motion to revoke, adjudicated the defendant guilty, and sentenced him to four years' confinement. Id. However, the trial court's written judgment included not only the four-year prison sentence, but a fine of $300.00. Id. On appeal, the defendant argued the judgment should be reformed to delete the fine because the trial court did not orally pronounce imposition of a fine at the adjudication hearing. Id. The court of appeals agreed, modifying the judgment to delete the fine. Id. The State sought review in the court of criminal appeals.
On review, the court held that a sentence must be orally pronounced in the defendant's presence. Id. at 500; see TEX. CODE CRIM. PROC. ANN. art. 42.03, § 1. The judgment, including the sentence, is merely the written embodiment of the oral pronouncement. Taylor, 131 S.W.3d at 500. Thus, when there is a conflict between the oral pronouncement and the written judgment, the oral pronouncement controls. Id. Accordingly, the court held the court of appeals properly deleted the fine from the judgment. Id.
Important to the instant case, the court in Taylor did not hold the trial court must orally pronounce the revocation or adjudication of guilt. Id. We hold that by accepting Kaska's plea of true and thereafter sentencing her to eight years' confinement, the trial court implicitly revoked her community supervision and adjudicated her guilty. See id. (noting that once defendant violates terms of community supervision, trial court proceeds to adjudicate guilt and assess punishment). Taylor does not mandate a contrary holding, nor does it require a specific pronouncement as suggested by Kaska. Id.
In accordance with Taylor and the Texas Code of Criminal Procedure, the trial court orally pronounced at least part of Kaska's sentence in her presence, stating, "I give her eight years TDC." This comports with the terms of imprisonment set forth in the court's written judgment. Accordingly, there is no conflict between the oral pronouncement and the written judgment with regard to the time Kaska must serve. See id. However, the trial court failed to include any mention of a fine in its oral pronouncement, but the written judgment assessed a $1,500.00 fine. Thus, the oral pronouncement conflicts with the written judgment in this regard. When the oral pronouncement and the judgment conflict, the oral pronouncement controls. Id. Accordingly, we hold the trial court erred in imposing a $1,500.00 fine. See id.
CONCLUSION
We overrule Kaska's issues except with regard to the conflict between the oral pronouncement of sentence and written judgment as it relates to the imposition of a fine. The State concedes the judgment should be modified to delete the fine. Accordingly, the trial court's judgment is modified to eliminate the requirement that Kaska pay the $1,500.00 fine; as modified, the judgment is affirmed.
Marialyn Barnard, Justice Do Not Publish