Donelle Lucille Espinoza v. State

• Court: Court of Appeals of Texas
• Decided: January 5, 2015
• Docket: 07-13-00301-CR
• Status: Published

Opinion

In The Court of Appeals Seventh District of Texas at Amarillo ________________________

No. 07-13-00301-CR ________________________

DONELLE LUCILLE ESPINOZA, APPELLANT

V.

THE STATE OF TEXAS, APPELLEE

On Appeal from the 47th District Court Potter County, Texas Trial Court No. 65,812-A; Honorable Dan Schaap, Presiding

January 5, 2015

MEMORANDUM OPINION Before CAMPBELL and HANCOCK and PIRTLE, JJ.

Appellant, Donnelle Lucille Espinoza, pled guilty in open court to theft enhanced

by two prior theft convictions1 and was sentenced to twenty months confinement and

assessed a $500 fine. On appeal, Appellant asserts (1) the trial court abused its

discretion in its sentencing and (2) her plea was involuntary because the trial court did

not properly admonish Appellant of the applicable sentence range. We affirm.

1 See TEX. PENAL CODE ANN. § 31.03(e)(4)(D) (West Supp. 2014). An offense under this section is a state jail felony. ISSUE ONE

Appellant asserts the trial court abused its discretion by sentencing her to twenty

months confinement because she had successfully completed three years of community

supervision in connection with a prior crime, maintained steady employment and was

active in her church and family since 2003. Her sentence is within the applicable

punishment range2 and neither we nor her attorney were able to find any case law to

support her assertion.

At the sentencing proceeding, the State presented a videotape showing

Appellant committing the theft charged in the indictment. Appellant admitted she had an

extensive shoplifting record and had trouble stealing in the past. She admitted stealing

and later selling contraband for cash while she was a home health nurse. On cross-

examination, Appellant admitted to committing other crimes involving theft in addition to

the theft for which she was being sentenced. Having considered all the evidence

offered at the sentencing proceeding by Appellant and the State, we cannot say the trial

court committed any error in assessing Appellant’s sentence.

ISSUE TWO

Appellant next asserts her plea was involuntary because, during the sentencing

proceeding, the trial court misstated that “the potential range of punishment [was]

anywhere between 108 days to 2 years in a state jail facility.” As stated earlier, no one

disputes that the offense was punishable by confinement in a state jail for any term of

2 No one disputes that the correct range of punishment was not more than two years but not less than 180 days. See TEX. PENAL CODE ANN. §§ 12.35, 31.03(e)(4)(D) (West Supp. 2014).

2 not more than two years or less than 180 days. See TEX. PENAL CODE ANN. §§ 12.35,

31.03(e)(4)(D) (West Supp. 2014).

No plea of guilty shall be accepted by the court unless it appears the defendant is

mentally competent and the plea is free and voluntary. See TEX. CODE CRIM. PROC.

ANN. art. 26.13(b) (West Supp. 2014). In admonishing the defendant of her possible

sentence for the crime committed, substantial compliance by the court is sufficient

unless the defendant affirmatively shows that she was not aware of the consequences

of her plea and that she was misled or harmed by the admonishment of the court. Id. at

26.13(c).

Although the record reflects the trial court may have delivered an inaccurate

admonishment, Appellant’s actual sentence lies within both the actual and misstated

minimum and, as such, meets the substantial compliance requirement. See Martinez v.

State, 981 S.W.2d 195, 197 (Tex. Crim. App. 1998) (citing Robinson v. State, 739

S.W.2d 195, 197 (Tex. Crim. App. 1998)). Further, the record reflects that, in the

various plea documents executed by Appellant and her attorney, she was admonished

of the correct punishment range, understood the written admonishment and was aware

of the consequences of her plea, and her plea was voluntary. Importantly, Appellant

fails to come forward with any evidence or citation to the record indicating that she was

not aware of the consequences of her plea and was misled or harmed by the trial

court’s incorrect admonishment. See Martinez, 981 S.W.2d at 197. Accordingly,

Appellant’s second issue is overruled.

3 CONCLUSION

The trial court’s judgment is affirmed.

Patrick A. Pirtle Justice

Do not publish.