Jaime Cuellar v. State ( 2020 )

In The
Court of Appeals
Seventh District of Texas at Amarillo
________________________
No. 07-20-00057-CR
No. 07-20-00058-CR
________________________
JAIME CUELLAR, APPELLANT
V.
THE STATE OF TEXAS, APPELLEE
On Appeal from the 320th District Court
Potter County, Texas
Trial Court No. 70,471-D & 70,472-D; Honorable Don Emerson Presiding
October 6, 2020
Before PIRTLE, PARKER, and DOSS, JJ.
MEMORANDUM OPINION
Appellant, Jaime Cuellar, appeals from his convictions following pleas of guilty to
the offenses of tampering with physical evidence 1 and possession of a controlled
substance, Penalty Group One, in an amount of one gram or more but less than four
1 TEX. PENAL CODE ANN. § 37.09(A)(1) (WEST 2019). An offense under this section is a felony of the
third degree. Id. at § 37.09(c).
grams. 2 Appellant challenges his convictions through two issues: (1) whether the trial
court erred by issuing two separate judgments when only one judgment was pronounced
and (2) whether the trial court should correct its written judgments to properly reflect
Appellant’s plea to, and the trial court’s disposition of, an enhancement allegation
contained in the indictment. We will affirm.
BACKGROUND
Appellant was charged with tampering with physical evidence and possession of
a controlled substance via two separate indictments. Each indictment contained an
enhancement allegation alleging Appellant had previously been convicted of the felony
offense of aggravated possession of marihuana, in the 49th District Court of Webb
County, on July 10, 1995. On April 30, 2018, Appellant entered an “open plea” 3 of guilty.
In a consolidated hearing before the bench, the trial court admonished Appellant as to the
two indictments then asked, “Are you guilty or not?” Appellant responded, “Yes, Your
Honor, I’m guilty.” The State then entered into evidence by stipulation four exhibits: (1)
an arrest report, (2) a lab report, (3) a judgment and sentence from Appellant’s Webb
County conviction, and (4) a judgment from Appellant’s 2017 conviction for possession of
a controlled substance, Penalty Group One, in an amount over one but less than four
grams. Following admission of the exhibits and brief arguments by counsel, the trial court
stated, “Okay. I’ll find you guilty, order a presentence investigation.”
2 TEX. HEALTH & SAFETY CODE ANN. § 481.115(A) (WEST 2017). An offense under this section is a
third degree felony. Id. at § 481.115(c).
3An “open plea” is a plea of guilty or nolo contendere, entered before the trial court without an
agreed recommendation from the prosecution as to punishment.
2
Because the State provided Appellant notice of its intent to enhance his range of
punishment by only one prior felony offense, 4 the applicable range of punishment for each
offense, as enhanced, was the range of punishment applicable to a second degree
felony—i.e., imprisonment for a term of not more than twenty years or less than two years
and a fine not to exceed $10,000. 5
The trial court reconvened the causes for a punishment hearing on June 21, 2018.
At the commencement of that hearing, the trial court did not call for, nor did Appellant
enter a plea “true” to the enhancement allegation contained in each indictment. Instead,
the trial court reviewed the presentence investigation report and questioned Appellant.
His counsel argued for a lesser punishment given the smaller quantity of drugs found in
his possession and the minor tampering that was “an offense of panic” rather than an
“offense of premeditation.” The trial court then stated, “Okay. You have been found guilty
of the – in Cause No. 70,472 and in Cause No. 70,471, I do now sentence you to serve
ten years in the Texas Department of Corrections . . . .” Thereafter, the court entered
separate written judgments for each case, assessing a sentence of ten years confinement
in each case, with the sentences to be served concurrently. Each judgment also reflected
a plea of “True,” as well as a finding of “True,” as to the enhancement allegation. While
4 TEX. PENAL CODE ANN. § 12.42(a) (West 2019). An offense “punished as” a higher offense raises
the level of punishment, not the degree of the offense. Oliva v. State, 548 S.W.3d 518, 526-27 (Tex. Crim.
App. 2018).
5 TEX. PENAL CODE ANN. § 12.33 (West 2019).
3
Appellant did not immediately appeal his convictions, the Texas Court of Criminal Appeals
did grant him leave to file an out-of-time notice of appeal. 6
ISSUE ONE—ABUSE OF DISCRETION
Through his first issue, Appellant contends the trial court abused its discretion by
issuing two written judgments setting forth two ten-year sentences when the trial court
pronounced a single “global sentence” without specifying to which charge the ten-year
sentence applied. Appellant argues that the court’s failure to orally pronounce which
sentence applied to which offense rendered the judgment vague and void. Consequently,
he asserts, the judgments should be reversed and remanded to the trial court for a new
hearing.
A trial court’s sentencing order is subject to review by an appellate court under an
abuse of discretion standard. Jackson v. State, 562 S.W.3d 717, 722 (Tex. App.—
Amarillo 2018, no pet.) (citing Jackson v. State, 680 S.W.2d 809, 814 (Tex. Crim. App.
1984); Moore v. State, No. 11-13-00050-CR, 2014 Tex. App. LEXIS 13318, at *5 (Tex.
App.—Eastland Dec. 11, 2014, no pet.) (mem. op., not designated for publication)). As
a general rule, a trial court’s sentence will not be disturbed if that sentence is within the
statutory range of punishment for the offense in question because such a sentence
complies with the objectives of the penal code. Jackson, 562 S.W.3d at 722 (citing
Jackson, 680 S.W.2d at 814).
6 Appellant requested and received permission from the Texas Court of Criminal Appeals to file an
out-of-time notice of appeal in each cause. See Ex parte Cuellar, Nos. WR-89,752-01, WR-89,752-02,
2020 Tex. Crim. App. Unpub. LEXIS 15 (Tex. Crim. App. Jan. 15, 2020).
4
Texas Penal Code section 3.03 requires that when “the accused is found guilty of
more than one offense arising out of the same criminal episode prosecuted in a single
criminal action, a sentence for each offense for which he has been found guilty shall be
pronounced.” Id. Article 42.03, section 1(a) of the Texas Code of Criminal Procedure
further provides that sentence shall be pronounced in the defendant’s presence because
the pronouncement of sentence is the appealable event, whereas the written judgment is
simply a memorialization of the oral sentence and should comport with its terms. Coffey
v. State, 979 S.W.2d 326, 328 (Tex. Crim. App. 1998).
Relying on Kerr v. State, Nos. 07-13-00128-CR, 07-13-00380-CR, 2014 Tex. App.
LEXIS 12850 (Tex. App.—Amarillo Nov. 25, 2014, no pet.) (mem. op., not designated for
publication), Appellant argues the trial court’s pronouncement of sentence here was void
for vagueness just like the pronouncement in Kerr. In Kerr, the defendant was charged
with two counts in a single indictment. Id. at *3. He was placed on deferred adjudication.
Id. When the State moved to adjudicate the defendant guilty, it did so without
differentiating between the counts. Id. At the hearing, the court called the case to order
by the single cause number and did not separately call Counts I and II. Id. The trial court
did not announce an adjudication of guilt on either count. Id. at *4. Because the trial
court announced a sentence of seventy-five years without specifying to which count the
sentence applied, the judgment was reversed. Id.
We, like the State, find Kerr distinguishable from the matter before us. Here,
Appellant was charged via two separate indictments, not two counts in a single
indictment. We find other distinguishing factors as well. At the outset of the plea hearing
in this case, the court stated, “You have been indicted in Cause No. 70,472 with
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possession of a controlled substance, and in 70,471 with tampering or fabricating
evidence with the intent to impair something.” The court continually referenced “these
offenses” and “these cases” in discussing punishment. The court also referenced the
written plea admonishments Appellant signed for each cause and confirmed with
Appellant his understanding of the applicable punishment range for the two offenses.
Furthermore, at the end of the sentencing hearing, the court stated, “Okay. You have
been found guilty of the – in Cause No. 70,472 and in Cause No. 70,471, I do now
sentence you to serve ten years in the Texas Department of Corrections . . . .” Unlike in
Kerr, the trial court here specifically noted Appellant had been found guilty in each
separate cause number just prior to announcing sentence.
If there is ambiguity in the pronouncement of sentence, then the verdict, oral
pronouncement, and written judgment should be read together to resolve the
ambiguity. Morris v. State, Nos. 07-12-0408-CR, 07-12-0409-CR, 07-12-0410-CR, 2013
Tex. App. LEXIS 4782, at *3 (Tex. App.—Amarillo Apr. 16, 2013, pet. ref’d) (mem. op.,
not designated for publication) (citing Aguilar v. State, 202 S.W.3d 840, 843 (Tex. App.—
Waco 2006, pet. ref’d)). Furthermore, the context of the court’s utterances should be
considered. Morris, 2013 Tex. App. LEXIS 4782, at *3 (citing Hill v. State, 213 S.W.3d
533, 536 (Tex. App.—Texarkana 2007, no pet.)). Accordingly, we find the record here
sufficiently reflects the trial court’s intent to sentence Appellant to a term of ten years of
imprisonment for each conviction. Because the written judgments mirror that intent, we
find no error. Appellant’s first issue is resolved against him.
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ISSUE TWO—REFORMATION OF JUDGMENT
Via his second issue, Appellant contends this court should reform the written
judgments to delete the plea of “true” noted in the summary portion of the judgment under
“Plea to 1st Enhancement Paragraph” and “Findings on 1st Enhancement Paragraph.”
Appellant argues he did not plead “true” to the enhancement allegations in either
indictment, nor did the trial court find the enhancement allegations to be “true.”
Accordingly, Appellant asserts, the judgments should not reflect a “true” plea and finding
for the first enhancement paragraph.
The State disagrees, arguing no oral plea or finding was necessary because
Appellant pleaded “guilty” to the indictments containing the enhancement allegations in
open court. Further, and more importantly, Appellant signed and filed with the trial court
a Judicial Confession stating he confessed guilt to each offense and that he pleaded
“[t]rue to enhancement paragraphs in the Indictment or Information.” Additionally, during
the plea hearing, Appellant’s counsel made the following judicial admission, “Your Honor,
the—Mr. Cuellar has one prior conviction, which we have agreed to in this case. That’s
a 1995 marijuana conviction that was a felony.” This was the offense alleged in the
enhancement paragraphs of each indictment.
“Absent an affirmative showing to the contrary, recitals in a judgment create a
presumption of regularity and truthfulness.” Hernandez v. State, No. 05-18-00172-CR,
2019 Tex. App. LEXIS 6745, at *17 (Tex. App.—Dallas Aug. 5, 2019, pet. ref’d) (mem.
op., not designated for publication) (citing Breazeale v. State, 683 S.W.2d 446, 450-51
(Tex. Crim. App. 1984) (op. on reh’g)). The trial court is not required to read the
enhancement paragraph or the findings to a defendant when the trial court alone
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assesses the defendant’s punishment. Epps v. State, Nos. 05-07-00040-CR, 05-07-
00041-CR, 05-07-00042-CR, 2007 Tex. App. LEXIS 6809, at *6-7 (Tex. App.—Dallas
Aug. 17, 2007, no pet.) (mem. op., not designated for publication) (citing Reed v. State,
500 S.W.2d 497, 499 (Tex. Crim. App. 1973); Seeker v. State, 186 S.W.3d 36, 39 (Tex.
App.—Houston [1st Dist.] 2005, pet. ref’d)). Furthermore, a defendant is not required to
state an oral plea to enhancement paragraphs on the record if he has previously
stipulated to the allegations in the enhancement paragraphs. Hernandez, 2019 Tex. App.
LEXIS 6745, at *18 (citing Lopez v. State, 452 S.W.3d 425, 429 (Tex. App.—Houston [1st
Dist.] 2014, pet. ref’d); Garner v. State, 858 S.W.2d 656, 659 (Tex. App.—Fort Worth
1993, pet. ref’d)). “Although it is preferred that trial courts read the enhancement
paragraphs orally and find them to be true or not true on the record, a trial court does not
err by not doing so.” Davis v. State, No. 05-14-01374-CR, 2016 Tex. App. LEXIS 743, at
*15 (Tex. App.—Dallas Jan. 26, 2016, no pet.) (mem. op., not designated for publication)
(citing Seeker, 186 S.W.3d at 39). Because an enhancement finding only affects the
range of punishment and is not otherwise a part of the accused’s sentence that must be
pronounced in open court, a trial court “does not commit error by failing to announce its
enhancement findings in open court prior to sentencing so long as it appears from the
record that the court found the enhancement true and entered the sentence accordingly.”
Davis, 2016 Tex. App. LEXIS 743, at *16 (citing Meineke v. State, 171 S.W.3d 551, 557
(Tex. App.—Houston [14th Dist.] 2005, pet. ref’d)).
Because the trial court had no duty to make an oral finding of “true” or “not true”
on the enhancement paragraph in each case and because the record reflects Appellant
pleaded “true” to each through his guilty plea to each offense as indicted and through his
8
signing of a judicial confession that included a plea of “true” to the enhancements in each
case, we conclude the plea and finding of “true” recited in the written judgments of
conviction are “not inconsistent with the trial court’s oral silence concerning the finding[s].”
Epps, 2007 Tex. App. LEXIS 6809, at *7. See Seeker, 186 S.W.3d at 39; Hernandez,
2019 Tex. App. LEXIS 6745, at *18. Further, given the state of the record, Appellant has
not overcome the presumption that the recitations in the judgment regarding his plea of
true and the court’s finding of true are correct. Hernandez, 2019 Tex. App. LEXIS 6745,
at *18.
We note also that reformation of the judgments to delete the pleas and findings of
“true” would not alter the outcome of Appellant’s cases. Appellant was charged with two
separate third degree felonies, each carrying an applicable range of punishment of
imprisonment for a term of two to ten years. TEX. PENAL CODE ANN. § 12.34(a) (West
2019). With Appellant’s stipulated previous final felony conviction, the applicable
punishment range for each increased to a term of imprisonment of two to twenty years.7
Id. at § 12.42(a). But, because the trial court sentenced Appellant to imprisonment for a
term of ten years for each offense, a sentence within the range of both a second degree
and a third degree felony, removing the enhancement finding would do nothing to alter
Appellant’s sentences. See Bray v. State, 179 S.W.3d 725 (Tex. App.—Fort Worth 2005,
no pet.) (citing Homan v. Hughes, 708 S.W.2d 449, 454 (Tex. Crim. App. 1986) (stating
that the law does not compel us to require courts to perform “useless tasks”)). As such,
we overrule Appellant’s second issue.
We note that the same prior conviction may be used to enhance each indictment tried
7
simultaneously. Villarreal v. State, 809 S.W.2d 295, 298 (Tex. App.—Corpus Christi 1991, pet. ref’d).
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CONCLUSION
Having resolved each of Appellant’s issues against him, we affirm the judgments
of the trial court.
Patrick A. Pirtle
Justice
Do not publish.
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