Theodore Habib Ayoub v. State ( 2016 )

COURT OF APPEALS
EIGHTH DISTRICT OF TEXAS
EL PASO, TEXAS
THEODORE HABIB AYOUB, §
No. 08-15-00380-CR
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Appellant, Appeal from the
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V. 243rd District Court
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THE STATE OF TEXAS, of El Paso County, Texas
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Appellee. (TC# 20140D01797)
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OPINION
Theodore Habib Ayoub appeals the judgment revoking community supervision. We
reform the judgment to reflect a sentence of six months’ confinement, to run concurrently with
Appellant’s other cases, and affirm the judgment as so modified.
FACTUAL SUMMARY
Appellant waived his right to a jury trial and entered a negotiated plea of guilty to
possession of cocaine, a state jail felony. In accordance with the plea bargain, the trial court
placed Appellant on community supervision for a term of two years. On July 1, 2015, Appellant
entered a plea of guilty to two additional charges of state-jail-felony theft and one charge of
injury to a child, a third-degree felony. The plea agreement in those cases required Appellant to
serve six months in the state jail for the theft charges and two years for the injury to a child
charge. At the conclusion of that hearing, the prosecutor announced that the State would be
filing motions to revoke in Appellant’s other cases and would recommend a sentence of six
months to run concurrent with all of the other cases, including the theft and injury to a child
cases.
On August 13, 2015, the State filed a motion to revoke in the instant case, and Appellant
entered a negotiated plea of true to the motion several months later. Without any objection from
Appellant, the prosecutor announced the plea bargain as confinement for two years in the state
jail, and the court sentenced Appellant in accordance with the plea bargain. Appellant
subsequently filed a motion to withdraw his plea, or alternatively, to reform the judgment,
asserting that the State’s recommendation in this case did not comport with the parties’
agreement of confinement for six months. He also filed a motion for judgment nunc pro tunc
and an agreed motion to reform the judgment. The record does not reflect that Appellant
requested a hearing on his motions, and the trial court did not rule on any of the motions.
REFORMATION
In his sole issue, Appellant asserts that the trial court erred by not following the terms of
the plea bargain announced on the record on July 1, 2015. He further alleges that the prosecutor
committed prosecutorial misconduct by misrepresenting the plea bargain and his counsel was
ineffective because he did not object to the misstatement of the plea bargain. The State responds
that the limited appellate record does not support Appellant’s claims of prosecutorial misconduct
and ineffective assistance of counsel. At the same time, the State acknowledges that the
prosecutor initially stated the plea bargain as confinement for six months, and after the
revocation hearing, the prosecutor entered into an agreement with Appellant to reform the
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sentence to six months’ confinement. Due to the existence of this agreement with Appellant, the
State does not oppose reformation of the judgment to reflect the original bargained-for sentence
of six months. We therefore modify the judgment of the trial court to reflect a sentence of
confinement in the state jail for six months to run concurrently with the other sentences. The
judgment, as so modified, is affirmed.
August 31, 2016
YVONNE T. RODRIGUEZ, Justice
Before McClure, C.J., Rodriguez, and Hughes, JJ.
(Do Not Publish)
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