Opinion
No. 05-11-01473-CR No. 05-11-01474-CR No. 05-11-01475-CR
08-02-2012
AGUSTIN SOSA MORA, Appellant v. THE STATE OF TEXAS, Appellee
Affirmed as Modified; Opinion Filed August 2, 2012.
On Appeal from the 291st Judicial District Court
Dallas County, Texas
Trial Court Cause Nos. F06-62165-U, F06-62166-U, F07-72699-U
MEMORANDUM OPINION
Before Justices O'Neill, Richter, and Lang-Miers
Opinion By Justice O'Neill
Agustin Sosa Mora appeals from his convictions for possession with intent to deliver heroin and cocaine and aggravated assault. In eight points of error, appellant contends the trial court's orders of deferred adjudication and the judgments adjudicating guilt should be modified. We modify the judgments adjudicating guilt and affirm as modified. The background of the cases and the evidence adduced at trial are well known to the parties, and therefore we limit recitation of the facts. We issue this memorandum opinion pursuant to Texas Rule of Appellate Procedure 47.4 because the law to be applied in the case is well settled. Factual Background
Appellant waived a jury and pleaded guilty to possession with intent to deliver heroin in an amount of one gram or more but less than four grams, possession with intent to deliver cocaine in an amount of four grams or more but less than 200 grams, and aggravated assault with a deadly weapon, a knife. See Tex. Health & Safety Code Ann. § 481.112(a), (c), (d) (West 2010); Tex. Penal Code Ann. § 22.02(a)(2) (West 2011). Appellant also pleaded true to one enhancement paragraph in each case. Pursuant to plea agreements, the trial court deferred adjudicating guilt in each case, placed appellant on ten years' community supervision in the drug cases and seven years' community supervision in the aggravated assault case, and assessed a $500 fine in each of the drug cases and a $1,000 fine in the aggravated assault case.
The State later moved to adjudicate guilt, alleging appellant violated condition (a) by committing a new assault offense; condition (a) by committing a new burglary of a habitation offense; condition (h) by failing to complete community service work; condition (j) by failing to pay probation fees, and condition (k) by failing to pay court costs. Although appellant pleaded not true to the allegations in a hearing on the motions, he testified he assaulted the complainant after he was placed on community supervision. The trial court adjudicated appellant guilty and assessed punishment at fifteen years' imprisonment in each case. Deferred Adjudication Orders
In his first three points of error, appellant contends the orders deferring adjudication should be modified to correct the name of the controlled substance, the offense date, and show that one of the offenses was a second-degree felony. Once the trial court adjudicated appellant guilty, the original judgment suspending the sentence and placing him on community supervision was no longer in effect. See Taylor v. State, 131 S.W.3d 497, 502 (Tex. Crim. App. 2004); McCoy v. State, 81 S.W.3d 917, 919 (Tex. App.-Dallas 2002, pet. ref'd). A trial court's judgment adjudicating guilt expressly sets aside the underlying order placing appellant on community supervision. See McCoy, 81 S.W.3d at 919. Therefore, there is no longer an order in effect requiring modification. We overrule appellant's first three points of error. Judgments Adjudication Guilt
In his fourth, sixth, and eighth points of error, appellant contends the judgments adjudicating guilt in each case should be modified to reflect the conditions of community supervision he was found to have violated. In his fifth and seventh points of error, appellant contends the judgments in cause nos. 05-11-01473-CR and 05-11-01474-CR should also be modified to show there was no plea bargain. The State responds that the trial court's judgments adjudicating guilt should be modified in the manner requested by appellant.
During the hearing on the motions to adjudicate, appellant pleaded not true to the allegations. Thus, there was no plea bargain. The written judgments in cause nos. 05-11-01473-CR and 05-11- 01474-CR incorrectly state the terms of plea bargain were “open plea.” We sustain appellant's fifth and seventh points of error.
During the adjudication hearing, the trial court heard testimony from several witnesses about the new burglary and assault offenses, including the complainant, the complainant's sister, the responding police officer, appellant's sister, and appellant. All of the evidence presented referred to the new offenses. There was no evidence presented concerning the other allegations. Thus, the trial court must have based its decision to adjudicate guilt on finding the allegations of the new burglary and assault offenses true. The judgments incorrectly state the trial court found appellant violated the “terms and conditions of community supervision as set out in the State's original motion to adjudicate guilt.” We sustain appellant's fourth, sixth, and eighth points of error. Conclusion
In cause nos. 05-11-01473-CR and 05-11-01474-CR, we modify the judgments adjudicating guilt to show the terms of plea bargain are “N/A,” and the trial court found appellant violated condition (a) of his community supervision. See Tex. R. App. P. 43.2(b); Bigley v. State, 865 S.W.2d 26, 27-28 (Tex. Crim. App. 1993); Asberry v. State, 813 S.W.2d 526, 529-30 (Tex. App.-Dallas 1991, pet. ref'd). As modified, we affirm the trial court's judgments adjudicating guilt.
In cause no. 05-11-01475-CR, we modify the judgment adjudicating guilt to show the trial court found appellant violated condition (a) of his community supervision. See id. As modified, we affirm the trial court's judgment adjudicating guilt.
MICHAEL J. O'NEILL
JUSTICE
Do Not Publish
Tex. R. App. P. 47
111473F.U05
Court of Appeals Fifth District of Texas at Dallas JUDGMENT
AGUSTIN SOSA MORA, Appellant
V.
THE STATE OF TEXAS, Appellee
No. 05-11-01473-CR
Appeal from the 291st Judicial District Court of Dallas County, Texas. (Tr.Ct.No. F06- 62165-U).
Opinion delivered by Justice O'Neill, Justices Richter and Lang-Miers participating.
Based on the Court's opinion of this date, the trial court's judgment adjudicating guilt is MODIFIED as follows:
The section entitled “Terms of Plea Bargain” is modified to show “N/A.”
The section entitled “(5) While on community supervision” is modified to show “(5) While on community supervision, Defendant violated conditions (a) of community supervision.”
As modified, we AFFIRM the trial court's judgment adjudicating guilt.
Judgment entered August 2, 2012.
MICHAEL J. O'NEILL
JUSTICE
Court of Appeals Fifth District of Texas at Dallas JUDGMENT
AGUSTIN SOSA MORA, Appellant
V.
THE STATE OF TEXAS, Appellee
No. 05-11-01474-CR
Appeal from the 291st Judicial District Court of Dallas County, Texas. (Tr.Ct.No. F06- 62166-U).
Opinion delivered by Justice O'Neill, Justices Richter and Lang-Miers participating.
Based on the Court's opinion of this date, the trial court's judgment adjudicating guilt is MODIFIED as follows:
The section entitled “Terms of Plea Bargain” is modified to show “N/A.”
The section entitled “(5) While on community supervision” is modified to show “(5) While on community supervision, Defendant violated conditions (a) of community supervision.”
As modified, we AFFIRM the trial court's judgment adjudicating guilt.
Judgment entered August 2, 2012.
MICHAEL J. O'NEILL
JUSTICE
Court of Appeals Fifth District of Texas at Dallas JUDGMENT
AGUSTIN SOSA MORA, Appellant
V.
THE STATE OF TEXAS, Appellee
No. 05-11-01475-CR
Appeal from the 291st Judicial District Court of Dallas County, Texas. (Tr.Ct.No. F07- 72699-U).
Opinion delivered by Justice O'Neill, Justices Richter and Lang-Miers participating.
Based on the Court's opinion of this date, the trial court's judgment adjudicating guilt is MODIFIED as follows:
The section entitled “(5) While on community supervision” is modified to show “(5) While on community supervision, Defendant violated conditions (a) of community supervision.”
As modified, we AFFIRM the trial court's judgment adjudicating guilt.
Judgment entered August 2, 2012.
MICHAEL J. O'NEILL
JUSTICE