Delgado v. State

677 S.W.2d 776, 1984 Tex. App. LEXIS 6455

• Court: Court of Appeals of Texas
• Decided: September 12, 1984
• Docket: 04-81-00460-CR
• Status: Published

Opinions

OPINION

ESQUIVEL, Justice.

This is an appeal from a conviction of murder. Appellant waived indictment and was charged by information. Appellant also waived a jury, entered a guilty plea, and submitted himself to the court for punishment, which, after denying probation, assessed his punishment at ten years’ confinement in the Texas Department of Corrections.

Appellant raises three grounds of error, which will be addressed in turn.

Ground of error one complains that the appellant was denied the effective assistance of counsel because his attorney held out to him the possibility of probation despite the fact that he was ineligible for probation under the provisions of TEX. CODE CRIM.PROC.ANN. art. 42.12, § 3f(a)(2) (Vernon 1979).¹ In his brief, appellant contends that because he used a deadly weapon, it was legally impossible for him to receive probation and therefore, counsel was ineffective. We disagree.

In Texas, a judge has the authority to grant probation after a plea of guilty. TEX.CODE CRIM.PROC.ANN. art. 42.12 (Vernon 1979). Section 3 of that article clearly states that probation may be granted after a guilty plea to any crime, where the maximum punishment assessed against the defendant does not exceed ten years. Where the plea is to the court and a motion for probation is filed, the court has absolute, unreviewable discretion to grant or deny probation.

Appellant relies for his contention on the exceptions to eligibility for probation found in TEX.CODE CRIM.PROC.ANN. art. 42.-12, § 3f(a)(2) (Vernon 1979). That section states that a defendant is not eligible for probation “when it is shown that the defendant used or exhibited a deadly weapon.... ” Id. The section further requires, however, that:

[u]pon affirmative finding that the defendant used or exhibited a deadly weapon ... the trial court shall enter the finding in the judgment of the court. Upon an affirmative finding that the deadly weapon the defendant used or exhibited was a firearm, the court shall enter that finding in its judgment.

Id.

In Jones v. State, 596 S.W.2d 910 (Tex.Crim.App.1980), the Court of Criminal Appeals held that section 3f(a)(2) only applies when there is an affirmative finding that the defendant used or exhibited a deadly weapon, and such is entered in the judgment of conviction. Jones, 596 S.W.2d at 911. Further, having the court assess punishment, as distinguished from a jury, has no bearing whatever on .the possibility of probation. See TEX.CODE CRIM.PROC. ANN. art. 4212, §§ 3, 3a (Vernon 1979).

The judgment in this case does not reflect an affirmative finding that the defendant used a deadly weapon, nor does it reflect that the deadly weapon used was a firearm. Article 42.12, § 3f(a)(2) has no application to this case. These facts, coupled with the fact the court accepted the application of probation, deferred sentencing pending a presentence report and referred the appellant to the probation department, evinces an intent not to find appellant used a deadly weapon. Appellant’s argument that he was ineligible for probation is clearly without merit and is overruled.

In ground of error two, appellant contends that the court erred in failing to admonish him that he could not be granted probation if he chose to have the court assess punishment. This ground is overruled on the basis of our discussion above. Assuming, arguendo, that the appellant was not eligible for probation, there is no duty on the trial court to admonish a defendant that he might not receive probation. Brown v. State, 478 S.W.2d 550, 550 (Tex.Crim.App.1972). The court properly admonished the defendant as regards guilty pleas pursuant to TEX.CODE CRIM.PROC.ANN. art. 26.13 (Vernon Supp.1984). Finding no error, we overrule appellant’s ground of error two.

In ground three, the appellant contends that the judgment is erroneous in stating the appellant was charged by indictment. We note that this was a “form” judgment. The appellant's contention is correct in that he did, in fact, waive indictment and agree to be charged by information. The State argues, and we agree, that in the case of a voluntary and informed plea of guilty, all non-jurisdictional defects are waived. Fierro v. State, 437 S.W.2d 833, 834 (Tex.Crim.App.1969). Jurisdiction was acquired when the appellant waived indictment and agreed to be charged by information. There is no jurisdictional defect, thus any other error is waived.

The State argues that this court need not reform the defect in the judgment under the doctrine of “de minimus non curat lex.” We disagree. Pursuant to TEX.CODE CRIM.PROC.ANN. art. 44.24, (b) (Vernon Supp.1984), we reform the judgment to recite that the appellant waived indictment and was charged by information. Alexander v. State, 496 S.W.2d 86, 87 (Tex.Crim.App.1973).

The judgment of the trial court, as modified, is affirmed.

1 . Originally enacted as the Prisoners—Supervision and Release Act, ch. 347, § 2, 1977 Tex. Gen.Laws, 925, 926, amended by, Act of June 19, 1983, ch. 977, § 10, 1983 Tex.Sess.Law Serv. 5320 (Vernon). Although section 3f(a)(2) appears in the session laws, there is no change in its language. Therefore, subsequent citation will be to the version in the Code of Criminal Procedure.