No. 01-09-00078-CR
Opinion issued July 29, 2010. DO NOT PUBLISH. See Tex. R. App. P. 47.2(b)
On Appeal from the 263rd District Court, Harris County, Texas, Trial Court Cause No. 1162936.
Panel consists of Justices JENNINGS, HANKS, and BLAND.
GEORGE C. HANKS, JR., Justice.
Appellant, John Paul Plattenburg, pleaded guilty to possession with intent to deliver a controlled substance and was sentenced to 20 years' confinement. On appeal, appellant contends the trial court erred by improperly admonishing him as to the incorrect range of punishment for the offense and his guilty plea was therefore involuntary. The State rejects this argument but concedes the trial court erroneously sentenced appellant by assessing a term of incarceration without a fine and that a new punishment hearing is therefore required. We remand this case for a new punishment hearing.
BACKGROUND
Appellant was indicted for the offense of possession with intent to deliver a controlled substance, namely dihydrocodeine (hydrocodone), weighing at least 400 grams. See TEX. HEALTH SAFETY CODE ANN. § 481.112(a) (Vernon 2010) ("[A] person commits an offense if the person knowingly manufactures, delivers, or possesses with intent to deliver a controlled substance . . .," including hydrocodone). Because the hydrocodone in appellant's possession weighed at least 400 grams, the applicable range of punishment was confinement for life or for a term of 15 to 99 years, and a fine not to exceed $250,000. Id. § 481.112(f). Appellant entered a guilty plea and signed a "waiver of constitutional rights, agreement to stipulate and judicial confession." As part of his written guilty plea, appellant pleaded guilty to the charge as recited in the indictment and acknowledged that the prosecutor had not made a sentencing recommendation. The plea was signed by appellant, appellant's counsel, the Assistant District Attorney, and the trial court. Appellant also signed a set of admonishments, statements, and waivers. That document stated, "Pursuant to Article 26.13(d), Code of Criminal Procedure, the Court admonishes you the Defendant as follows and instructs you to place your initials by each item if you fully understand it. . . . [Y]ou are charged with the felony offense of Possession with the intent to deliver of at least 400 grams." The document contained several paragraphs listing degrees of crimes and applicable punishments. None of the printed paragraphs corresponded to the degree of crime with which appellant was charged and the applicable statutory punishment range of 15 to 99 years or confinement for life. Of the list of possible punishments that did appear, several paragraphs, including the paragraph entitled "FIRST DEGREE FELONY," were crossed out. Appellant's initials do not appear next to the paragraph describing the range of punishments for a first degree felony. Appellant did, however, initial the paragraphs describing the range of punishments for second degree felonies (2-20 years confinement and a fine up to $10,000), third degree felonies (2-10 years confinement and a fine up to $10,000), and for state jail felonies. A final category of "Other" is circled and contains a handwritten note, "10 years — 99 years or life and up to $250,000 fine." Appellant did not place his initials next to this paragraph. Appellant also initialed numerous other paragraphs, including those waiving his rights to have the trial court orally admonish him and to have a reporter's record made of the entry of his plea. The document was signed by appellant, appellant's counsel, the Assistant District Attorney, and the trial court. There is no reporter's record in this appeal transcribing any entry of appellant's plea or any oral admonishments given by the trial court. The trial court heard evidence at the sentencing phase. At the close of evidence, the State asked that appellant be confined for 30 years. The trial court orally pronounced appellant's punishment at 20 years' confinement but failed to assess a fine. The trial court's written judgment states appellant was convicted of a "1ST DEGREE FELONY" and sentenced to "20 YEARS INSTITUTIONAL DIVISION, TDCJ." The judgment did not assess a fine, containing the note "N/A" in the blank for the fine to be assessed. The judgment also stated the sentence of confinement was to be suspended and placed appellant on community supervision. ANALYSIS
In a single point of error, appellant contends his guilty plea was involuntary because the trial court improperly admonished him regarding his range of punishment. Appellant's brief points out he did not initial the paragraph stating he could be sentenced to "10 to 99 years or life and up to $250,000 fine." Appellant only initialed the paragraphs relating to second-and third-degree felonies and lesser crimes. Contending that the 20-year sentence he received is in excess of the paragraphs he initialed, appellant asks us to reverse the judgment of the trial court and remand the case for a new trial. Although the State contends appellant's point of error about his admonishments lacks merit, it does concede appellant's sentence is void for want of a mandatory fine imposed by the Health and Safety Code. The State admits the sentence assessed is illegal and the proper remedy is for this Court to remand for a new punishment hearing. I. Voluntariness of Plea
To comply with due process, a defendant's plea must be knowing and voluntary. See Brady v. United States, 397 U.S. 742, 748-49 (1970). A plea is generally considered voluntary if entered after a defendant is made fully aware of the direct consequences of the plea. State v. Jimenez, 987 S.W.2d 886, 888 (Tex. Crim. App. 1999) (en banc). The Fourteenth Amendment provides that no state may "deprive any person of life, liberty, or property, without due process of law." Consistent with that guarantee, a guilty plea is valid only if it represents a voluntary and intelligent choice among the alternative courses of action open to the defendant. North Carolina v. Alford, 400 U.S. 25, 31, 91 S. Ct. 160 (1970); Brady v. United States, 397 U.S. 742, 747, 90 S. Ct. 1463 (1970); McCarthy v. United States, 394 U.S. 459, 466, 89 S. Ct. 1166 (1969); Kniatt v. State, 206 S.W.3d 657, 664 (Tex. Crim. App. 2006). An involuntary guilty plea must be set aside. Boykin v. Alabama, 395 U.S. 238, 244, 89 S. Ct. 1709, 1713 (1969); Williams v. State, 522 S.W.2d 483, 485 (Tex. Crim. App. 1975). When reviewing the voluntariness of a guilty plea, the record is viewed as a whole and voluntariness of a plea is determined by the totality of the circumstances. Martinez v. State, 981 S.W.2d 195, 197 (Tex. Crim. App. 1998); Griffin v. State, 703 S.W.2d 193, 196 (Tex. Crim. App. 1986); Edwards v. State, 921 S.W.2d 477, 479 (Tex. App.-Houston [1st Dist.] 1996, no pet.) (voluntariness of plea is determined by examination of totality of circumstances). The only complaint appellant raises regarding the voluntariness of his plea is that he was improperly admonished as to the range of punishment and thus his plea was not voluntary and intelligent. Appellant does not complain of the sufficiency of the numerous other admonishments he signed. A guilty plea may be voluntary and intelligent, even if a defendant is misled or confused regarding the sentence he may receive. Ex parte Gibauitch, 688 S.W.2d 868, 872 (Tex. Crim. App. 1985) (holding that mere assertion that defendant might have requested jury trial had proper range of punishment been given does not demonstrate harm for purpose of establishing that plea was involuntary or unknowing, especially when there is no plea bargain); see also Aguirre-Mata v. State, 125 S.W.3d 473, 474 n. 4 (Tex. Crim. App. 2003) (en banc) ("Admonishing a guilty-pleading defendant that the consequences of a guilty plea are the admission of the factual elements of the charged crime and a waiver of various constitutional rights without admonishing the defendant on the range of punishment literally satisfies [the requirements of Boykin]."). The record from the punishment hearing in this case reveals that appellant was aware of the possible consequences of his plea. In closing statements, appellant's counsel argued that appellant's guilty plea was an indication that he had "accepted [his] responsibility" and "made the decision to put that punishment in [the court's] hands." Appellant's counsel concluded by stating, in part, "But I say to you again, he's come to you like a man and he's told you, I am guilty." In its closing argument, the State asked for 30 years' incarceration — beyond the 20-year upper range that appellant had initialed — arguing, "He is not a probation candidate, Judge. . . . [E]ach and every time he committed a felony offense that we know about, each one of those offenses is 10 years to life." After the State's remarks, the Court asked whether appellant "had anything to say" before sentence was pronounced. Appellant responded, "No, your Honor." The State's closing remarks specifically referred to the possibility that appellant could be sentenced for 30 years or life — sentences possible only under a first degree felony conviction. Neither appellant nor his counsel objected to these statements, and appellant did not bring the apparent contradiction of the admonishments he initialed to the court's attention when the court asked him whether he wished to say anything. Finally, the trial court sentenced appellant to 20 years, a sentence that was within the range of punishment of which appellant was admonished in writing and that he initialed. In light of these facts, the record as a whole does not demonstrate that appellant's guilty plea was not voluntary and intelligent. II. Improper Admonishment
"[T]o ensure that only a constitutionally valid plea is entered and accepted by the trial court," and to assist the trial court in making the determination that defendant's relinquishment of rights is knowing and voluntary, Texas law requires the trial court to admonish a defendant before accepting a plea of guilty or no contest. Carranza v. State, 980 S.W.2d 653, 656 (Tex. Crim. App. 1998) (en banc) (quoting Ex parte Morrow, 952 S.W.2d 530, 534 (Tex. Crim. App. 1997) (en banc), cert. denied, 525 U.S. 810 (1998)); see TEX. CODE CRIM. PROC. ANN. art. 26.13(a) (Vernon 2009). One of these statutorily required admonitions is the range of punishment attached to the offense; however, it is not constitutionally required. See TEX. CODE CRIM. PROC. art. 26.13(a)(1); Aguirre-Mata, 125 S.W.3d at 475-76. The trial court is required to substantially comply with the requirements of Article 26.13(a), either orally or in writing. TEX. CODE CRIM. PROC. ANN. art. 26.13(c), (d). If the record shows the trial court delivered an incorrect admonishment regarding the range of punishment, and the actual sentence lies within both the actual and misstated maximum, then substantial compliance with Article 26.13 is attained. Martinez v. State, 981 S.W.2d 195, 197 (Tex. Crim. App. 1998). On the other hand, the admonishment does not substantially comply when the defendant receives a greater sentence than the court informed the defendant was possible for the charged offense, see Weekley v. State, 594 S.W.2d 96 (Tex. Crim. App. 1980), or when the sentence actually imposed is outside the range allowed by the statute. Hodges v. State, 604 S.W.2d 152, 156 (Tex. Crim. App. 1980). Neither of these problems is present here. A failure to properly admonish a defendant about the range of punishment before accepting a guilty plea is subject to harmless error analysis under Texas Rule of Appellate Procedure 44.2(b). Aguirre-Mata v. State, 125 S.W.3d at 474. In conducting this harm analysis, we must disregard the error unless it affected appellant's substantial rights. TEX. R. APP. P. 44.2(b); Burnett v. State, 88 S.W.3d 633, 637 (Tex. Crim. App. 2002). In the context of a guilty plea, an error affects substantial rights when, considering the record as a whole, we do not have a fair assurance that the defendant's decision to plead guilty would not have changed had the trial court properly admonished him. Anderson v. State, 182 S.W.3d 914, 919 (Tex. Crim. App. 2006). Assuming the trial court improperly admonished him, appellant's brief does not provide an explanation of how his decision to plead guilty would have been impacted if the trial court had properly admonished him. Given that the sentence he received is within the range for which he was admonished, we hold appellant has failed to show that the error affected his plea. Evidence presented during the sentencing portion of appellant's trial revealed appellant, a professional pharmacist, was the target of a sting operation by the D.E.A. in which, on three occasions, he illegally sold several thousand pills of narcotics to a confidential informant. One witness testified he had illegally purchased narcotics from appellant at least ten times and he did so by using multiple prescriptions at one time, as well as without any prescriptions at all. Other evidence showed that appellant had "over a kilo of hydrocodone and over a kilo of Xanax riding around in his truck with him." Finally, appellant did not object to or contradict the State's assertion that he could be sentenced to a life term, thus lending support to an inference that he and his counsel were aware such a possibility existed. In light of the lack of any evidence that appellant's decision to plead guilty would have changed if the trial court had given a different admonishment, we hold that there is no evidence appellant was harmed by an improper admonishment of the trial court. See, e.g., Anderson v. State, 182 S.W.3d at 919. Accordingly, we overrule appellant's issue on appeal. III. Failure to Assess Fine
The Texas Health and Safety Code requires that both confinement and a fine be assessed in cases involving possession with intent to deliver at least 400 grams of hydrocodone. See TEX. HEALTH SAFETY CODE ANN. § 481.112(f). The trial court sentenced appellant to a term of confinement but did not assess a fine. A sentence outside the statutory limits is void. Hern v. State, 892 S.W.2d 894, 896 (Tex. Crim. App. 1994). "A void sentence cannot be waived." Ibarra v. State, 117 S.W.3d 282, 284 (Tex. App.-Houston [1st Dist.] 2005, no pet.) In Mizell v. State, the Court of Criminal Appeals explained that "a sentence that is outside the maximum or minimum range of punishment is unauthorized by law and therefore illegal." 119 S.W.3d 804, 806 (Tex. Crim. App. 2003). Since a punishment outside statutory limits is void as a matter of law, a court has no authority to simply modify the sentence by adding a punishment of any amount "even in the interest of judicial economy and fairness or even if the addition is de minimis." Ibarra, 117 S.W.3d at 284 (citing Reed v. State, 795 S.W.2d 19, 19-21 (Tex. App.-Houston [1st Dist.] 1990, no pet.) and Scott v. State, 988 S.W.2d 947, 948 (Tex. App.-Houston [1st Dist.] 1999, no pet.)). Where a sentence is outside the statutory limits, the only remedy is a new punishment hearing. See TEX. CODE CRIM. PROC. ANN. art. 44.29(b) (Vernon Supp. 2008); Ibarra, 177 S.W.3d at 284; Scott, 988 S.W.2d at 948. The facts of Ibarra v. State are strikingly similar to the instant case. 177 S.W.3d at 282. In Ibarra, the appellant pleaded guilty, without an agreed punishment recommendation, to aggravated first degree possession with intent to deliver a controlled substance (cocaine) weighing over 400 grams in violation of section 481.112(a) of the Texas Health and Safety Code. Id. (citing TEX. HEALTH SAFETY CODE ANN. § 481.112(a) (Vernon 2003)). Because the amount of cocaine exceeded 400 grams, the offense was punishable by confinement for life or 15 to 99 years and a fine not to exceed $250,000. Id. The trial court orally pronounced the appellant's punishment at 15 years' confinement, whereas the written judgment reflected the 15 years' confinement but also included a $1 fine that was not orally pronounced. Id. Consequently, trial counsel requested that the court delete the fine because it was not pronounced orally. Id. On the other hand, the State argued that the proper remedy was to remand the case for a new punishment hearing because the oral sentence, which trumps the written sentence, did not include the requisite fine. Id. On appeal, we found that the sentence was erroneous: "The trial judge erred in not assessing a fine as required for a conviction under section 481.112(f)." Id. (citing TEX. HEALTH SAFETY CODE ANN. § 481.112(f) and Scott, 988 S.W.2d at 948). Appellant is convicted of the same offense as the appellant in Ibarra. The law mandates the same result — reversal of the judgment and a remand for a new punishment hearing. CONCLUSION
We overrule appellant's issue. Because, however, we conclude that appellant's sentence is void as a matter of law due to the trial court's failure to assess a fine in addition to a period of incarceration, we reverse that portion of the judgment and remand the case for a new punishment hearing pursuant to Article 44.29(b) of the Texas Code of Criminal Procedure. See TEX. CODE CRIM. PROC. art. 44.29(b).