Ricardo Ramirez A/K/A Paul Ramirez v. State ( 1999 )

Nos. 04-98-00898-CR, 04-98-00924-CR, 04-98-00925-CR, 04-98-00926-CR

Paul RAMIREZ a/k/a Ricardo Ramirez, Appellant

v.

The STATE of Texas, Appellee

From the 186th Judicial District Court, Bexar County, Texas Trial Court Nos. 98-CR-1235, 96-CR-4590W, 96-CR-6241, 98-CR-3510B Honorable Terry McDonald, Judge Presiding

Opinion by: Tom Rickhoff, Justice

Sitting: Tom Rickhoff, Justice

Sarah B. Duncan, Justice

Karen Angelini, Justice

Delivered and Filed: May 12, 1999

DISMISSED IN PART; AFFIRMED IN PART; AFFIRMED AS MODIFIED IN PART

In 1996, Paul Ramirez pled guilty to theft of property valued over $1500 and less than $20,000 (number 04-98-00924-CR) and was placed on deferred adjudication probation for three years in accordance with a plea agreement. In 1997, Ramirez pled guilty to unauthorized use of a motor vehicle (number 04-98-00925-CR) and was placed on deferred adjudication probation for two years in accordance with a plea agreement. In 1998, Ramirez pled nolo contendere to aggravated robbery (number 04-98-00898-CR) and guilty to burglary of a habitation (number 04-98-00926-CR). On the same day, he pled true to violating the terms of his probation in the other two cases. In accordance with the plea agreements, the trial court sentenced Ramirez to imprisonment for fifteen years in the aggravated robbery and burglary of a habitation cases. After revoking his probation and adjudicating him guilty, the court orally pronounced a three-year sentence in the theft case and a two-year sentence in the unauthorized use case. But the written judgment in the theft case states that Ramirez was given a two-year sentence, and the written judgment in the unauthorized use case states that Ramirez was given a three-year sentence.

Appeal Numbers 04-98-00898-CR, 04-98-00925-CR, and 04-98-00926-CR

In the unauthorized use, aggravated robbery, and burglary of a habitation cases, Ramirez's court-appointed attorney has filed briefs containing a professional evaluation of the record and demonstrating that there are no arguable grounds to be advanced. Counsel concludes that the appeals are frivolous and without merit. The briefs meet the requirements of Anders v. California, 386 U.S. 738, 744-45 (1967). Ramirez has been provided with a copy of the briefs and advised of his right to review the records and file pro se briefs.

Ramirez has filed a brief raising two issues. First, he asserts that he is not guilty of aggravated robbery. We do not have jurisdiction over this issue. See Tex. R. App. P. 25.2(b)(3); Davis v. State, 870 S.W.2d 43, 46 (Tex. Crim. App. 1994). Second, he asserts that his trial counsel was ineffective in failing to explain that he was entering a nolo contendere plea. He claims he thought he was going to have a jury trial on the aggravated robbery charge and he did not understand "what was going on" when he pled nolo contendere. We will construe this assertion as an argument that his plea was involuntary and we will assume arguendo that we have jurisdiction over this issue. See Flowers v. State, 935 S.W.2d 131, 134 (Tex. Crim. App. 1996) (construing Rule 40(b)(1)). But see Villanueva v. State, 977 S.W.2d 693, 696 (Tex. App.--Fort Worth 1998, no pet.) (holding that under Rule 25.2(b)(3), defendant may raise voluntariness on appeal only with the trial court's permission). There is nothing in the record to support Ramirez's claim that he did not understand the nature of the plea proceeding. Instead, the record contains a document in which Ramirez waived his right to trial on the aggravated robbery charge and agreed to plead nolo contendere. At the hearing, Ramirez acknowledged that he had signed this document and informed the trial court that he understood the document. We therefore overrule Ramirez's second pro se issue. See Crawford v. State, 890 S.W.2d 941, 944-45 (Tex. App.--San Antonio 1994, no pet.).

After reviewing the record, counsel's brief, and the pro se brief, we conclude that the appeals are without merit. We note, however, that the judgment in the unauthorized use case does not correctly set forth Ramirez's punishment. The court orally pronounced a two-year sentence, but the written judgment reflects a three-year sentence. We will reform the judgment to correct this clerical error. See Coffey v. State, 979 S.W.2d 326, 328-29 (Tex. Crim. App. 1998) ("[W]hen there is a variation between the oral pronouncement of sentence and the written memorialization of the sentence, the oral pronouncement controls.").

Appeal Number 04-98-00924-CR

In the theft case, counsel has filed a brief arguing that the three-year sentence orally pronounced by the trial court is void because it exceeds the maximum sentence allowed for a state jail felony. We do not have jurisdiction over this issue. See Coleman v. State, 955 S.W.2d 360, 363 (Tex. App.--Amarillo 1997, no pet.); Haller v. State, 933 S.W.2d 262, 262-63 (Tex. App.--Corpus Christi 1996, no pet.). We therefore dismiss the appeal in number 04-98-00924-CR. We note, however, that Ramirez is not serving a void sentence. Both the written judgment and the commitment notice order Ramirez to be incarcerated for two years, which is within the range allowed for state jail felonies. See Tex. Penal Code Ann. § 12.35(a) (Vernon 1994).

Tom Rickhoff, Justice

DO NOT PUBLISH