Opinion
No. 09-08-00034-CR
Submitted on March 16, 2009.
Opinion Delivered April 1, 2009. DO NOT PUBLISH.
On Appeal from the 260th District Court Orange County, Texas, Trial Cause No. D-050339-R.
Before McKEITHEN, C.J., GAULTNEY and HORTON, JJ.
MEMORANDUM OPINION
The trial court convicted Jerrell Wayne Stanley of murder committed under the immediate influence of sudden passion arising from an adequate cause. The trial court sentenced Stanley to twelve years of confinement and imposed a $1,000 fine. Contending he was not properly admonished and that he received ineffective assistance of counsel, Stanley's single issue on appeal challenges the voluntariness of his guilty plea. Stanley argues: (1) his trial counsel advised him that the trial court would put Stanley on community supervision; (2) trial counsel misinterpreted Article 42.12, § 3g of the Texas Code of Criminal Procedure and both failed to ask the trial court to defer a finding of guilt and asked for regular community supervision rather than deferred adjudication community supervision; (3) the trial court improperly admonished him for a second degree felony rather than a first degree felony; and (4) the trial court failed to admonish Stanley on the consequences of a violation of community supervision. We correct the written judgment to comport with the trial court's oral pronouncement and affirm the judgment. When a defendant enters his plea upon the advice of counsel and subsequently challenges the voluntariness of that plea based on ineffective assistance of counsel, the voluntariness of such plea depends on (1) whether counsel's advice was within the range of competence demanded of attorneys in criminal cases and if not, (2) whether there is a reasonable probability that, but for counsel's errors, he would not have pleaded guilty and would have insisted on going to trial. Ex parte Morrow, 952 S.W.2d 530, 536 (Tex.Crim.App. 1997). Stanley entered a guilty plea to the court on an indictment for murder. The State stipulated, orally and in writing, that Stanley committed the murder under the immediate influence of sudden passion arising from an adequate cause. The written admonishments reflected a second-degree-felony punishment range for murder. Stanley filed an application for community supervision. The trial court orally admonished Stanley on the range of punishment for a second degree felony and informed Stanley that if his guilty plea were accepted "that the decision as to your punishment — whether it be 10 years probation and a $10,000 fine or zero fine or 20 years confinement and a $10,000 fine — will be solely up to me and it will be my decision alone." After accepting Stanley's plea, the trial court stated "I find the defendant guilty of the offense of murder in the second degree and will order a pre-sentence investigation." The hearing reconvened after the preparation of the pre-sentence report. The trial court heard brief testimony from an investigator and the victim's stepfather, and defense counsel presented letters in support of Stanley's application for community supervision. The prosecution asked for a twenty-year sentence and defense counsel asked the trial court for "ten years in prison and ten years probation[.]" Stanley retained new counsel and filed a motion for new trial. Trial counsel testified at the hearing. According to counsel, Stanley would not have entered a guilty plea unless community supervision was an option. Counsel stated that he "felt [community supervision] was a very good possibility." He did not tell his client that it was an absolute that he would get community supervision. Counsel understood that Stanley pled to a section 3g offense for which the trial court could not grant regular community supervision. See Tex. Code Crim. Proc. Ann. art. 42.12, § 3g (Vernon Supp. 2008). Because he had experience with judges finding someone guilty and later withdrawing the finding to place someone on deferred adjudication community supervision, counsel thought Stanley was still probation eligible and was not concerned when the trial court found Stanley guilty. Counsel stated "I was a little concerned with the judge's wordings, but I didn't speak up or anything. I thought that's what he could do." Although he asked for "probation" without specifying the type of supervision being recommended, counsel testified that he knew he was thinking about deferred adjudication as opposed to regular community supervision. Counsel claimed that when he "saw the judge was not taking it back" he "asked for straight probation simply because I wasn't sure on a second degree involuntary." Nonetheless, counsel understood the available community supervision to be deferred adjudication. Counsel claimed he went over deferred probation "numerous times" with his client and that Stanley understood. Stanley testified that counsel "told me he felt sure that I was going to receive probation." He would not have taken the offer if probation were not a valid part of the offer. Stanley admitted counsel told him that the judge might "give you time, but he didn't see it." He admitted that neither counsel nor the trial judge told him he was absolutely going to receive community supervision. The appellant's wife testified that Stanley would not have pled had he known he could not receive community supervision from the court, but would have gone to trial. It was her understanding that Stanley could get community supervision even after he pled guilty. She thought community supervision was "a big possibility." On appeal, Stanley compares his case to a San Antonio case in which trial counsel failed to inform his client that he could not receive probation if he elected to have the trial court assess punishment after a jury found him guilty of aggravated sexual assault. See Medeiros v. State, 733 S.W.2d 605, 607 (Tex.App.-San Antonio 1987, no pet.). In Medeiros, deferred adjudication was not a possibility because the appellant pled not guilty to the jury. Id. at 606; see Tex. Code Crim. Proc. Ann. art. 42.12, § 5(a) (Vernon Supp. 2008). Here, Stanley filed an application for community supervision and pled guilty to the court. The trial court may place a defendant who pleads guilty to a 3g offense on deferred adjudication community supervision. See State v. Mungia, 119 S.W.3d 814, 818 (Tex.Crim.App. 2003); see also Tex. Code Crim. Proc. Ann. art. 42.12, § 3g (Vernon Supp. 2008); Tex. Code Crim. Proc. Ann. art. 42.12, § 5(a) (Vernon Supp. 2008). We must defer to the trial court's resolution of historical facts developed in the hearing on motion for new trial. Charles v. State, 146 S.W.3d 204, 208 (Tex.Crim.App. 2004), superseded on other grounds by Rule as stated in State v. Herndon, 215 S.W.3d 901, 905 n. 5 (Tex.Crim.App. 2007). Here, counsel's request for "ten years in prison and ten years probation" is some evidence that counsel was referring to regular rather than deferred adjudication community supervision. Although an inference could be drawn that counsel was always referring to regular community supervision because he believed Stanley would be eligible for it, Stanley was eligible for deferred adjudication community supervision at the time he entered his plea even if he pled guilty to a 3g offense. Acting as the finder of fact in the hearing on motion for new trial, the trial court could find credible counsel's testimony that counsel had actually recommended that Stanley be placed on deferred adjudication community supervision. We are unpersuaded by Stanley's argument that he was convicted in the first hearing and therefore not eligible for community supervision at the time of sentencing. "[T]he decision of the court in a unitary trial is not fixed until it renders judgment on guilt and punishment after all the evidence and arguments have been heard." Barfield v. State, 63 S.W.3d 446, 451 (Tex.Crim.App. 2001); see also Garza v. State, 212 S.W.3d 503, 506-07 (Tex.App.-Austin 2006, no pet.); State v. Sosa, 830 S.W.2d 204, 205 (Tex.App.-San Antonio 1992, pet. ref'd) (trial court had authority to withdraw its finding of guilt from previous hearing and permitted defendant to substitute guilty plea and apply for deferred adjudication community supervision). The trial court could have placed Stanley on community supervision. Even if counsel mistakenly believed regular community supervision were a possibility, his mistake did not prejudice the defense because Stanley was eligible for deferred adjudication. Stanley testified he did not distinguish between regular and deferred adjudication community supervision; so the trial court could have found that distinction did not affect Stanley's decision to plead guilty. Moreover, the trial court admonished Stanley that the court could decide to send Stanley to prison for twenty years and both trial counsel and Stanley agreed that trial counsel did not tell Stanley that community supervision was a certainty. "A plea is not rendered involuntary simply because the defendant did not receive the punishment he hoped for, even if his expectation was the result of something the defendant claims his lawyer told him." Nicholas v. State, 56 S.W.3d 760, 771 (Tex.App.-Houston [14th Dist.] 2001, pet. ref'd). Stanley also argues that his plea was involuntary because the trial court failed to admonish him on deferred adjudication and failed to admonish him on the punishment range for a first degree felony. The State stipulated that Stanley committed the murder under the immediate influence of sudden passion arising from an adequate cause. Accordingly, Stanley's exposure was for the second degree felony range of punishment. See Tex. Pen. Code Ann. § 19.02(d) (Vernon 2003). We also note that the written plea admonishments include a statement regarding the consequences of the violation of any condition of deferred adjudication community supervision. The admonishments provided in this case did not render Stanley's plea involuntary, nor was Stanley prejudiced by counsel's failure to object to the admonishments provided by the trial court. See Brown v. State, 943 S.W.2d 35, 42-43 (Tex.Crim.App. 1997) (failure to admonish about consequences of violation of deferred adjudication community supervision does not render a plea involuntary absent a showing of prejudice). Stanley has not established that his plea was involuntary. However, the standardized felony judgment summary on the written judgment states "DEGREE: First" but the reporter's record shows that the trial court convicted Stanley of a second degree felony. See Tex. Code Crim. Proc. Ann. art. 42.01, §§ 1(14), 4 (Vernon 2006). The oral pronouncement controls. Taylor v. State, 131 S.W.3d 497, 500 (Tex.Crim.App. 2004). "An appellate court may correct and reform a trial court judgment to make the judgment congruent with the record." St. Julian v. State, 132 S.W.3d 512, 517 (Tex.App.-Houston [1st Dist.] 2004, pet. ref'd). We therefore reform the judgment to state "DEGREE: Second." See Knight v. State, 581 S.W.2d 692, 694 (Tex.Crim.App. 1979) ("Where this Court has the necessary data and evidence before it for reformation, the judgment and sentence may be reformed on appeal."). We overrule the appellant's issue and affirm the judgment as reformed. AFFIRMED AS REFORMED.
The trial court granted permission to appeal. See Tex. R. App. P. 25.2(a)(2)(B).