Opinion
NO. 03-15-00045-CR
01-31-2017
Moses Joe Mejia, Appellant v. The State of Texas, Appellee
FROM THE DISTRICT COURT OF TOM GREEN COUNTY, 340TH JUDICIAL DISTRICT
NO. C-08-0776-SA , HONORABLE JAY K. WEATHERBY, JUDGE PRESIDING MEMORANDUM OPINION
Appellant Moses Joe Mejia was charged with indecency with a child by sexual contact. He pled guilty to the offense, the trial court deferred adjudication and placed Mejia on community supervision, and the State later moved to adjudicate guilt alleging violations of the terms of community supervision. At the adjudication hearing, the trial court found Mejia guilty and initially assessed punishment at six years' imprisonment. At the conclusion of the hearing, the trial court acknowledged the enhancement allegations, set aside the sentence and, at a subsequent hearing, sentenced Mejia to 25 years' imprisonment. In one issue, Mejia contends that the trial court (1) abused its discretion in, as Mejia describes, sua sponte granting the State a new trial on punishment and (2) violated Mejia's right against double jeopardy in setting aside the initial sentence and later assessing a more severe punishment. We will affirm.
BACKGROUND
Mejia was charged by indictment with indecency with a child by sexual contact, a second-degree felony. See Tex. Penal Code § 21.11(a)(1). The indictment also contained two enhancement paragraphs regarding previous felony convictions. Mejia pled guilty to the charged offense and true to the enhancement paragraphs. The trial court found the enhancement paragraphs true, deferred a finding of guilt, and placed Mejia on community supervision. See Tex. Code Crim. Proc. art. 42.12 § 5(a). The State later moved to adjudicate his guilt alleging that Mejia had violated the terms of his community supervision. After hearing evidence and argument, the trial court found that Mejia had violated the terms of his community supervision, found him guilty, and assessed his punishment at six years' imprisonment (within the second-degree-felony range) without consideration of Mejia's previous plea or its findings regarding the enhancement paragraphs.
Shortly after the trial court pronounced the sentence, the court acknowledged its mistake and set aside the sentence:
All right. I've made an error, apparently, because I announced that the maximum sentence in this matter was 20 years, and I'm going by the docket sheet that was printed and signed on here, and I should have known better, and I should have looked at the previous judgment. Apparently it was enhanced, so the minimum sentence in this matter is 25 years. I've already sentenced you, but I haven't signed anything.Mejia did not object. At a subsequent hearing, the trial court again expressly found the enhancement allegations true and assessed punishment at 25 years' imprisonment, consistent with the enhanced-punishment range.
Unless there is any objection at this time, I'm going to take all of that back because I did not give you proper notice of what the maximum sentence was. So, I'm going to set aside the sentencing in this matter, and what I want to do is, I'm going to take this under advisement. . . . [W]e're going to have to reconvene this at a later date for sentencing.
In his sole issue, Mejia contends that the trial court erred in sentencing him within the enhanced punishment range after initially assessing his punishment within the unenhanced punishment range for a second-degree felony.
DISCUSSION
The offense of which Mejia was convicted was a second-degree felony, the punishment range for which is two to 20 years' imprisonment. But the indictment also alleged that, before Mejia committed the current offense, he had been twice previously convicted of felonies. See Tex. Penal Code § 12.33(a). That allegation, if found true, would increase the punishment range to 25 to 99 years' or life imprisonment. See id. § 12.42(d).
Mejia argues that because the trial court initially assessed punishment within the second-degree-felony range, it was not authorized to set aside that sentence and reassess his punishment within the enhanced range at a later hearing. We disagree.
I. Applicable law
The court of criminal appeals has recognized a trial court's authority to modify a sentence on the same day it pronounces the sentence. In State v. Aguilera, 165 S.W.3d 695, 696 (Tex. Crim. App. 2005), the trial court initially sentenced Aguilera to 25 years' imprisonment. Later that day, the trial court reconsidered the sentence and reassessed punishment at 15 years' imprisonment. The court of criminal appeals held that the "trial court also retains plenary power to modify its sentence if, as in this case, the modification is made on the same day as the assessment of the initial sentence and before the court adjourns for the day." Id. at 698. It further held that the resentencing must be done in the presence of the defendant, his attorney, and counsel for the State. Id.
Shortly thereafter, in State v. Wooldridge, 237 S.W.3d 714, 718-19 (Tex. Crim. App. 2007), the court of criminal appeals held that, when the record reveals that the trial court believed that enhancement allegations were true, the court errs in failing to assess punishment within the enhanced range, and the resulting sentence is unlawful. See also State v. Kersh, 2 S.W.3d 636, 638 (Tex. App.—Houston [14th Dist.] 1999) (holding trial court was required to assess punishment within enhanced range at adjudication hearing because it had found enhancement allegations true at prior hearing), aff'd on other grounds, 127 S.W.3d 775, 778 (Tex. Crim. App. 2004) (holding that trial court's failure to consider enhancement findings when assessing punishment is subject to appeal).
This Court confronted facts similar to the present case in Grant v. State, 247 S.W.3d 360 (Tex. App.—Austin 2008, pet. ref'd). In that case, Grant had pled not true to enhancement allegations after being found guilty by a jury. Id. at 365. The State produced evidence supporting the allegations. Id. The trial court had not entered a finding as to those allegations when it pronounced a sentence that was below the enhanced-punishment range. Id. The State then requested clarification as to the trial court's enhancement finding, and the trial judge responded that he had forgotten about the allegations and resentenced Grant within the enhanced range. Id. at 365-66. Citing Aguilera and Wooldridge, this Court determined that the initial sentence was unlawful when it was pronounced because the record indicated that the trial court had impliedly found the enhancement allegation true, which required Grant to be sentenced as a habitual offender. Id. at 374. We rejected Grant's argument that the court's initial pronouncement reflected a full consideration of the enhancement evidence and an implied finding that the enhancement allegation was not true and instead concluded that the record revealed that the court "simply made a mistake." Id. We thus held that the trial court's correction of an unlawful sentence did not violate Grant's double-jeopardy rights. Id. at 375.
II. Application
This case presents even more compelling grounds for affirmance than Grant. First, unlike Grant, Mejia had pled true to the enhancement allegations, which relieved the State of its burden to prove them. Cf. id. at 365; see Donaldson v. State, 476 S.W.3d 433, 439 (Tex. Crim. App. 2015) ("A plea of 'true' will satisfy the State's burden of proof."). Second, unlike the trial court in Grant, the trial court here had expressly found the enhancement allegations true prior to its initial erroneous pronouncement. Cf. Grant, 247 S.W.3d at 365-66, 374. Then, as in Grant, after pronouncing a sentence that was below the enhanced punishment range, the trial court promptly acknowledged its mistake, namely, that it had overlooked the enhancement allegations. See id. at 365-66. Furthermore, the trial court's statement that the offense "was enhanced, so the minimum sentence in this matter is 25 years" reveals that the trial court had again found the allegations true at the adjudication hearing. Although the court reconvened at a later date to assess proper punishment, it did so in the presence of Mejia, his counsel, and the State's counsel in satisfaction of the Aguilera requirements. See Aguilera, 165 S.W.3d at 698; see also Riles v. State, 216 S.W.3d 836, 839 (Tex. App.—Houston [1st Dist.] 2006, no pet.) (trial court vacated sentence by stating shortly after pronouncement that it had not "finalized" the sentence, then reassessed punishment at hearing months later); cf. Harris v. State, 153 S.W.3d 394, 397 (Tex. Crim. App. 2005) (trial court erred in finding enhancement allegations true for first time on day after it pronounced sentence and resentencing defendant within enhanced punishment range). As in Grant, therefore, we conclude that the trial court did not err in promptly setting aside and ultimately correcting the unlawful sentence. See Grant, 247 S.W.3d at 375.
Mejia argues that the trial court, in vacating the sentence and reconvening to assess punishment at a later hearing, effectively sua sponte granted the State a new trial on punishment and contends that applicable standards were not met. As previously noted, however, a trial court retains authority to modify or vacate a sentence the day it is pronounced. Ex parte Cruzata, 220 S.W.3d 518, 520-21 (Tex. Crim. App. 2007) ("[A] defendant begins to serve his sentence at the adjournment of court on the day that the sentence is assessed." (citing Aguilera, 165 S.W.3d at 698)). The effect of vacating a sentence in that manner is a continuation of the proceeding and not the granting of a new trial. See id.; see also Aldridge v.State, No. 07-11-0276-CR, 2012 WL 5381620, at *2 (Tex. App.—Amarillo Nov. 2, 2012, no pet.) (per curiam) (mem. op.) (not designated for publication) (holding that trial court merely continued prior proceeding and did not grant new trial when it indicated an intent to assess certain punishment but ultimately postponed sentencing).
Mejia further argues that the trial court was not permitted to hear new evidence at the later hearing and contends that the record contained no evidence to support the enhancement finding at that hearing and resulting sentence. But even assuming that applicable authority prohibits consideration of new evidence after a trial court vacates a sentence immediately after pronouncing it and continues the proceeding to a later date, the trial court in this case did not hear new evidence at the later hearing. Rather, it merely acknowledged evidence that was already in the record and before the court, namely, Mejia's prior plea of true to the enhancement allegations.
Mejia contends that authority permitting same-day vacation of a sentence did not involve the introduction of additional evidence in support of the later-assessed punishment. See, e.g., State v. Aguilera, 165 S.W.3d 695 (Tex. Crim. App. 2005); Grant v. State, 247 S.W.3d 360 (Tex. App.—Austin 2008, pet. ref'd). But in Aguilera, the trial court reassessed punishment after hearing an "off-the-record 'victim impact statement' allocution," suggesting that the trial court is not limited to considering evidence produced prior to its initial pronouncement in reassessing punishment. See Aguilera, 165 S.W.3d at 696. However, because the trial court in the present case did not receive additional evidence after vacating the initial sentence, we need not decide that issue.
Once a defendant waives a jury trial, pleads guilty to a non-capital offense and true to enhancement allegations, and receives community supervision after the trial court defers adjudication, the proceedings become a unitary trial. Washington v. State, 893 S.W.2d 107, 109 (Tex. App.—Dallas 1995, no pet.). In this case, therefore, the State was not required to reintroduce Mejia's plea of true, which Mejia never attempted to withdraw, at the adjudication hearing. Mejia's plea of true at the initial plea hearing was thus sufficient to support the trial court's findings of true and the resulting enhanced sentence. Indeed, the trial court, having found the allegations true, was required to sentence Mejia within the enhanced punishment range. See Grant, 247 S.W.3d at 374-75; Kersh, 2 S.W.3d at 638.
See also Lopez v. State, 96 S.W.3d 406, 412 (Tex. App.—Austin 2002, pet. ref'd) (deferred-adjudication proceeding continues "in the normal fashion after the adjudication of guilt" and is merely "a continuation of the unitary trial proceeding"); State v. Kersh, 2 S.W.3d 636, 638 (Tex. App.—Houston [14th Dist.] 1999), aff'd, 127 S.W.3d 775 (Tex. Crim. App. 2004) (after defendant enters guilty plea, trial becomes unitary proceeding, issues of guilt and punishment cannot be separated, and time for defendant to withdraw plea of true same as for withdrawing guilty plea); Garner v. State, 858 S.W.2d 656, 659 (Tex. App.—Fort Worth 1993, pet. ref'd) (additional admonishment and plea not required when defendant previously stipulated to enhancement allegations and punishment is assessed by trial court).
Mejia alternatively argues that, in failing to object to the trial court's initial pronouncement or introduce evidence of Mejia's plea of true at the adjudication hearing, the State waived the enhancement allegations. But he fails to cite authority to support that contention, and we conclude that his argument contradicts authority cited herein.
The trial court did not err in promptly vacating and later correcting the unauthorized sentence based on its findings and Mejia's plea of true to the enhancement allegations. We overrule his sole issue.
CONCLUSION
We affirm the judgment of the trial court.
/s/_________
Cindy Olson Bourland, Justice Before Chief Justice Rose, Justices Pemberton and Bourland Affirmed Filed: January 31, 2017 Do Not Publish