Aguilar, Angel v. State

• Court: Court of Appeals of Texas
• Decided: September 26, 2012
• Docket: 05-12-00219-CR
• Status: Published

Opinion

AFFlRIiEl) as Modified; Opinion Filed September 26, 2012.

in The (!niirt uf Aptiimhi 1ttrtrt uf tt Iat1a

No. 05-12-00219-CR No. 05-12-00220-CR

ANGEL AGUILAR, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 265th Judicial District Court Dallas County, Texas Trial Court Cause Nos. F10-45384-R, F10-45385-R

MEMORANDUM OPINION Before Justices Bridges, Richter, and Lang Opinion By Justice Lang

Angel Aguilar waived a jury and pleaded guilty to delivery of heroin in an amount of four

grams or more but less than 200 grams and possession with intent to deliver heroin in an amount of

four grams or more but less than 200 grams. See TEx. HEALTH & SAFETY CODE ANN. 481.1 12(a). § (d) (West 2010). The trial court assessed punishment at eight years’ imprisonment and a $500 fine

in each case. In three points of error, appellant contends the deadly weapon finding should be

deleted in one case, and the judgments should be modified to show he entered open pleas. We

modify the trial court’s judgments and affirm as modified. The background of the cases and the

evidence admitted at trial are well known to the parties, and we therefore limit recitation of the facts. We issue this memorandum opinion pursuant to Texas Rule of Appellate Procedure 47.4 because

the law to he applied in the case is well settled.

DIADLY WEroN FINDING

In his first point of error, appellant contends the judgment in cause no. 05—1 2—00220—CR

should he modified to delete the affirmative deadly weapon finding. The State responds the record

contains sufficient evidence to support the deadly weapon finding.

Article 42.12, section 3g(a)(2) octhe Texas Code of Criminal Procedure permits the entry

of a deadly weapon finding when it is shown that a defendant used or exhibited a deadly weapon in

the commission of the offense. See TEX. CODE CIUM. Pioc. ANN. art. 42.12. 3g(a)(2) (West Supp.

2011). A deadly weapon means a firearm or anything that in the manner of its use or intended use

is capable of causing death or serious bodily injury. TEx. PENAL CODE ANN § l.07(a)(17) (West Supp. 2012), In the context of a deadly weapon finding, the term “use” means any employment of

a deadly weapon. even simple possession. if that possession facilitates the associated felony. See

Coleman v. State, 145 S.W.3d 649, 652 (Tex. Crim, App. 2004); Smith v. State, 176 S.W.3d 907,

919 (Tex. 2005, pet. ref d).

The indictment alleged appellant used or exhibited a deadly weapon, a firearm, during

commission of the offense. Appellant pleaded guilty and judicially confessed to the offense as

alleged in the indictment. Appellant’s judicial confession and stipulation of evidence tracks the

language in the indictment, including the use and exhibition of a deadly weapon, a firearm.

Appellant’s judicial confession sufficiently supports the deadly weapon finding contained in the

judgment. See Pitts v. State, 916 S.W.2d 507, 5 10 (Tex. Crirn. App. 1996) (it is well settled that a

judicial confession, standing alone, is sufficient to sustain a conviction upon a guilty plea); see also

Alexander v. State, 868 S.W.2d 356, 360 (Tex. App.—DalIas 1993, no pet.). We conclude the evidence presented is sufficient to Support the affirmative deadly weapon finding. We overrule

appellant S fi i-st point of error.

MOnIFY .JUDGMENTS

In his second and third points of error, appellant contends thejudgments should be modified

to show he entered “open” guilty pleas and did not have a plea agreement. The State agrees

appellant is entitled to have the judgments modified as he requests.

The judgments state there was a plea agreement for eight years’ imprisonment. The record

shows there was no plea bargain agreement in either case. Thus, the judgments are incorrect. We

sustain appellant’s second and third points oferror. We modify the judgments to show the terms of

plea bargain were “open.” See TEx. R. Api. P.43.2(b); Biglev v. State, 865 S.W.2d 26, 27—28 (Tex.

Crim. App. 1993); Asherrv v. State, 8 13 S.W.2d 526, 529-30 (Tex. App.—DaIlas 1 991, pet. ref d).

We note there are two other errors contained in the judgment for cause no. 05-12-00220-CR.

First, the judgment does not show a fine. The record shows the trial court orally pronounced a $500

fine in each case when it found appellant guilty and imposed the eight-year sentences. When a

conflict exists between the oral pronouncement and the written judgment, the oral pronouncement

controls. See C’ojjy v. State, 979 S.W.2d 326, 328 (Tex. Crim, App. 1998). We modify the

judgment in cause no. 05-12-00220-CR to include the $500 fine. See TEx. R. App. p. 43.2(b);

Bigley, 865 S.W.2d at 27-28; Asberry, 813 S.W.2d at 529-30.

The judgment in cause no. 05-12-00220-CR identifies the offense for which appellant was

convicted as “delivery controlled substance heroin 4G.” Appellant was indicted for and pleaded

guilty to possession with intent to deliver heroin in an amount of four grams or more but less than

200 grams. We modify the judgment to show the correct name of the offense for which appellant

was convicted is “possession with intent to deliver heroin 4G.” Id. CONCLUSION

In cause no. 05-12-002 1 9-CR, we modify the judgment to show the terms of plea bargain are

“open.” As modified, we affirm the trial court’s judgment.

In cause no. 05-12-00220—CR, we modify the judgment to show: (1) the name of the offense

is “possession with intent to deliver heroin 4G;” (2) the terms of plea bargain are “open;” and (3)the

fine is $500. As modified, we affirm the trial court’s judgment.

DOUGLAI S. LANG / J UST1C” Do Not Publish TEX. R. Apr. P. 47 12021 9F.U05

-4- Qttnir( uf Aiiahj iiftI! Diitritt uf Jcxui at at1a JUDGMENT ANGEL AGUILAR, Appellant Appeal from the 265th Judicial District Court of Dallas County, Texas. (Tr.Ct.No. o. 05—l2-002 19-CR V. F 1 O-45384-R). Opinion delivered by Justice Lang, Justices THE STATE OF TEXAS, Appellee Bridges and Richter participating.

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

The section entitled “Terms of Plea Bargain” is modified to show “Open.”

As modified, we AFFIRM the trial court’s judgment.

Judgment entered September 26, 2012.

DOUGLAS S. LANG JUSTI