Abate, Markos v. State

Opinion

Affirmed, in part; Affirmed as modified, in part; and Reversed and remanded, in part and Opinion Filed February 14, 2013

InThe

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.!Fiftl! Oistrict uf axa6 at 1a11a No. OS-i 1-01320-CR No. 05-11-01321-CR No, 05-11-01322-CR No. 05-11-01323-CR No, 05-1 1-01324-CR

MARKOS ABATE, Appellant

V.

TIlE STATE OF TEXAS, Appellee

On Appeal from the 203rd Judicial District Court Dallas County, Texas

Trial Court Cause Nos. F10-34975-P, F1O-35830-P, F10-35831-P, F01-37219-P, & F01-37220-P

MEMORANDUM OPINION

Before Justices FitzGerald, Fillmore, and Evans Opinion by Justice Fillmore The trial court convicted Markos Abate of five drug-related offenses and assessed

punishment of fifteen years’ imprisonment on four of the offenses and ten years’ imprisonment

on the fifth offense In his first three issues, Abate requests we reform the judgment in two of the

cases. In his final two issues, Abate asserts the ten-year sentence is void because it is outside the

range of punishment for a state jail felony and, in the alternative, requests that we abate the

appeal and allow the trial court to resolve certain conflicts in the clerk’s record.

\Ve affirm the trial court’s judgments in cause numbers Fl035830P (051 l-0i321-CR)

and F I 03583 I -P (05-11 -01 322-CR). We modil’ the trial court s judgment (1) in cause number

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Fl034975P to reflect Abate was convicted of a second degree felony; (2) in cause number F0l

372 l9P to reilect Abate was convicted ot possessing, with intent to deliver, a controlled

substance in an amount of four grams or more hut less than 200 grams and to reflect the offense

occurred on March 2, 2001; and (3) in cause number F0l-.37220P to reflect Abate was convicted

of a state jail felony. As modified, we affirm the trial court’s judgments in cause numbers FlO

34975P (05l l-01320CR) and F0137219P (05l l0l323-CR). Because the punishment

assessed by the trial court in cause number F01-37220P is outside the punishment range for a

state jail felony, we reverse that portion of the judgment assessing punishment and remand cause

number F01-37220-P (05-I 1-01324-CR) for a new trial on punishment. See TEx. CODE CRIM.

PROC. ANN. art. 44.29(b) (West Supp. 2012).

The background of these cases is well known to the parties, and we therefore limit

recitation of the facts. We issue this memorandum opinion because the law to be applied is well

settled. See TEx. R. App. P. 47.2(a), 47.4.

Background

In 2001, Abate was indicted for possession of methamphetamine in the amount of one

gram or more but less than four grams (FO I -37220-P) and for possessing, with intent to deliver,

four grams or more but less than 200 grams of cocaine (FOl-37219-

t P). The trial court granted

the State’s motion to reduce the charge in cause number FOl-37220-P to the lesser included

offense of possession of methamphetamine under one gram. Abate then pleaded guilty to both

charges. The trial court deferred the adjudication of Abate’s guilt and placed Abate on

The clerks record originally filed in cause number F0i-37220-P appears to contain a numherofdocuments from cause number F0l-377l9-P with

a “20” handwritten over the “19’ We requested the clerk iile a supplemental record containing the actual documents relating to cause number FOl-37220-P. This opinion is based on the supplemental clerk’s record.

community supervision for two years on the methamphetamine charge and four years on the

cocaine charge. The period of community supervision in both cases was ultimately extended,

through several orders by the trial court, until February 12, 2013.

in September 2010, Abate was charged in cause number Fl0-34975-P with possessing,

with intent to deliver, four grams or more but less than 200 grams of methamphetamine.

The

trial court granted the State’s motion to reduce the charge to the lesser included offense of

possessing, with intent to deliver, one or more grams but less than four grams of

methamphetamine. Abate pleaded guilty to the charge. The trial court deferred an adjudication

of guilt and placed Abate on community supervision for a period of seven years.

In February 2011, Abate was charged with possessing, with intent to deliver, one gram or

more hut less than four grams of methamphetamine (Fl0-35830-P) and possessing, with intent to

deliver, four grams or more but Less than two hundred grams of gamma hydroxybutyrate (FlO

35831-P), The State also tiled motions to proceed to an adjudication of guilt in cause numbers

FO 1-3721 9-P, FO 1-37220-P. and Ft 0-34975-P.

Abate pleaded guilty to the two new charges and pleaded true to the allegations he

violated the provisions of community supervision in the other three cases. The trial court found

Abate guilty in cause numbers F 10-35830-P and F10-35831-P and assessed punishment of

fifteen years’ imprisonment in each case. The trial court adjudicated Abate guilty in the

remaining three cases and assessed punishment of fifteen years’ imprisonment in cause numbers

F 10-34975-P and F01-372 19-P and ten years’ imprisonment in cause number F01-37220-P.

Modification of Judgment

In his first three issues, Abate asserts the trial court’s judgment in cause number FlO

34975-P should be modified to reflect a conviction for a second degree felony and the trial

court’s judgment in cause number F01-37219-P should be modified to reflect the correct offense

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and the correct ollense date. [his Court has the power to modily an mcorrect judgm ent to make

the record speak the truth when we have the necessary information to do so. See TFx. R. App. P.

432tb); Biglcv v. State, 865 S.W2d 26, 2728 (Tex. Crim. App. 1993): Asherr’ v, State, 813

S.W.2d 526, 52930 (Te. App.—Dallas 1993, pet. ref’d).

In cause number Fl034975-P, Abate was indicted for possessing, with intent to deliver ,

four grams or more but less than 200 grams of methamphetamine, a first degree felony . See TEx.

HEALTH & SAFETY CODE ANN. § 481,102(6), 481.112(a),(d) (West 2010). The trial court granted the State’s motion to reduce the charge to the lesser included offense of posses sing, with

intent to deliver, one gram or more but less than four grams of methamphetam ine, a second

degree felony. See id. § 481.102(6), 481.1 12(a),(c). The trial court admonished Abate that he was charged with a second degree felony, and the order of deferred adjudication indicates the

degree of offense is a second degree felony. However, the judgment adjudicating guilt reflects

the degree of offense is a first degree felony. We resolve Abate’s first issue in his favor and

modify the trial court’s judgment in cause number F 10-34975-P (05-1 1-0132 0-CR) to reflect

Abate was convicted of a second degree felony.

In cause number F01-37219-P, Abate was indicted for possessing, with intent to deliver,

four grams or more but less than 200 grams of cocaine. The alleged offense date was March 2,

2001. Abate’s plea documents and judicial confession reflect that he pleaded guilty to

possession of cocaine with intent to deliver and that the offense occurred on March 2, 2001. The

judgment adjudicating guilt, however, reflects an offense of “Manufactoring [sic] controlled

subst., 4G” and an offense date of March 2, 2011. We resolve Abate’s second and third issues in

his favor and modify the trial court’s judgment in cause number F0l-372 19-P (05-1 1-01323-CR)

to reflect Abate was convicted of possessing, with intent to deliver, four grams or more but less

than 200 grams of a controlled substance and the offense date was March 2,2001.

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Illegal Sentence

In his tburth issue, Abate contends his sentence in cause number F0l-37220P is void

because it exceeds the punishment range for a state jail felony and, therefore, he is entitled to a

new punishment hearing. In his fifth issue, Abate argues, alternatively, that this Court should

abate the case to allow the trial court to resolve conflicts in the clerk’s record . Because the

supplemental clerk’s record has resolved any inconsistencies in the original record filed in this

appeal, we resolve Abate’s fifth issue against him.

Abate was indicted for possession of one gram or more but less than four grams of

methamphetamine, a third degree felony. See TEx, HEALTH & SuETY CoDE ANN.

481 102(6) 481 115(a) (c) (West 2010) Uhe trial Lourt granted the State s motion to reduce

the charged offense to possession of methamphetamine under one gram, a state jail felony. See

TEx. HEALTH & SAFETY CoDE ANN. §* 481.102(6), 481.1 15(a),(b). The deferred adjudication order states the degree of the offense is “State Jail.” Further, during the revoca tion hearing, the

trial court informed Abate that cause number FOl-37220-P “is a state jail felony .” The trial

court’s judgment, however, states the degree of offense is a third degree felony . Accordingly, on

our own motion, we modify the trial court’s judgment adjudicating guilt to reflect that Abate was

convicted of a state jail felony. See TEx. R, APP. P. 43.2(b); Bigley, 865 S.W.2 d 27—28; Asberry,

813 S.W.2d at 529—30.

The punishment range for a state jail felony is confinement in a state jail for any term not

more than two years or less than 180 days and, in addition, an optional fine not to exceed

$10,000. TEX. PENAL CODE ANN. § 12.35(a),(b) (West Supp. 2012). The trial court sentenced Abate to ten years’ imprisonment—a sentence outside the maximum range of punishment for a

state jail felony.

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A defendant has an “absolute and nonwaiveable right to be sentenced within the proper

range of punishment.” Sj,eth v State, ( S.W.3d 530, 532—33 (Tex. Crim. App. 1999). A sentence that is outside the maximum or minimum range of punishment is unauth orized by law

and is, therefore, illegal. Mi:ell v. State. 1 19 S.W.3d 804, 806 (Tex. Crim.

App. 2003). As a

result, a sentence outside the statutory punishment range for an offense is void and must be

reversed. See Kern v, State, 892 S.W.2d 894, 896 (Tex. Crim. App. 1 994);

Farias v. State, No.

01-12-00205-CR, 2012 WL 5360981, at *2 (Tex, App.—Houston [1st Dist.i Nov. 1, 2012, pet.

tiled).

We resolve Abate’s fourth issue in his favor. We modify the trial court’s judgment to

reflect the correct degree of the offense. We reverse that portion of the judgment assessing

punishment and remand cause number F0l-37220-P (05-I 1-0 1324-CR)

for a new trial on

punishment. See TEx. CoDE CRIM. PRoc. ANN. art. 44.29(b).

ROBERT M. FILLMORE JUSTICE

Do Not Publish TEx. R. Apr. P. 47

11 1320F.U05

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3Fifti! JntnrI uf exa at t1atta JUDGMENT

MARKOS ABATE. Appellant On Appeal from the 203rd Judicial District Court, Dallas County, Texas No. 05ll0l320CR V. Trial Court Cause No, F1034975P.

Opinion delivered by Justice Fillmore.

THE STATE OF TEXAS, Appellee Justices FitzGerald and Evans participating.

Based on the Court’s opinion of this date, the judgment of the trial court is MODIFIED as follows:

The section of the judgment titled ‘Degree” shall state “Second Degree Felony.”

As REFORMED, the judgment is AFFIRMED.

Judgment entered this 14111 (lay of February, 2013.

ROBERT M. FILLMORE JUSTICE

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3FIftIa istrirt nf ixaii at DalLas JUDGMENT

MARKOS ABATE, Appellant On Appeal from the 203rd Judicial District Court. Dallas County, Texas No. 051 10132lCR V. Trial Court Cause No. FI0-35830P.

Opinion delivered by Justice Fillmore.

THE STATE OF TEXAS, Appellee Justices FitzGerald and Evans participating.

Based on the Court’s opinion of this date, the judgment of the trial court is AFFIRMED.

Judgment entered this 1 4 th

day of February, 2013.

ROBERT M. FILLMORE JUSTICE

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lFiftI! iiitrItt øf kxLu’ at 1attiui JUDGMENT

MARKOS ABATE, Appellant On Appeal from the 203rd Judicial District Court. Dallas County, Texas No. 05-liM1322CR V. Trial Court Cause No, Fl03583IP.

Opinion delivered by Justice Fillmore.

THE STATE OF TEXAS, Appellee Justices FitzGerald and Evans participating.

Based on the Court’s opinion of this date, the judgment of the trial court is AFFIRMED.

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Judgment entered this day of February, 2014.

ROBERT M. FILLMORE JUSTICE

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Fift1! Th1rict of xa at Oa1ta JUDGMENT

MARKOS ABATE, Appellant On Appeal from the 203rd Judicial District Court, Dallas County, Texas No. 05l l0l323-CR V. Trial Court Cause No. F01-37219P.

Opinion delivered by Justice Fillmore.

THE STATE OF TEXAS, Appellee Justices FitzGerald and Evans participating.

Based on the Court’s opinion of this date, the judgment of the trial court is MODIFIED as follows:

The section of the judgment titled “Offense for which Defendant convicted” shall state “Possession, with intent to deliver, a controlled substance in an amount of four grams or more but less than 200 grams.”

The section of the judgment titled “Date of Offense” shall state “3/2/2001.”

As REFORMED, the judgment is AFFIRMED.

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Judgment entered this day of February, 2013.

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ROBERT M. FILLMORE JUSTICE

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fiftI! Dthitrirt ni Lixa at Lt11a JUDGMENT

MARKOS ABATE, Appellant On Appeal from the 203rd Judicial District Court, Dallas County, Texas No. 051 1-0l324CR V. Trial Court Cause No. F0l-37220P.

Opinion delivered by Justice Fillmore.

THE STATE OF TEXAS, Appellee Justices FitzGerald and Evans participating.

Based on the Court’s opinion of this date, the judgment of the trial court is MODIFIEI)

as follows:

The section of the judgment titled “Degree” shall state “State Jail Felony.”

The judgment of the trial court is REVERSED and the cause REMANDED for further proceedings pursuant to Tex. Code Crim. Proc. Ann. Art. 44.29(b).

Judgment entered this l4h1 day of February, 2013.

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ROBERT M. FILLMORE JUSTICE