Alan Leslie Balderamos v. State ( 2014 )

COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 02-13-00121-CR
ALAN LESLIE BALDERAMOS APPELLANT
V.
THE STATE OF TEXAS STATE
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FROM THE 372ND DISTRICT COURT OF TARRANT COUNTY
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MEMORANDUM OPINION1
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I. INTRODUCTION
This is a community supervision revocation appeal. In two issues,
appellant Alan Leslie Balderamos argues that the trial court erred by entering a
deadly-weapon finding in the judgment adjudicating his guilt and that his guilty
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See Tex. R. App. P. 47.4.
plea was involuntary because the trial court did not admonish him as to the
consequences of a deadly-weapon finding. We will affirm.
II. PROCEDURAL BACKGROUND
The State indicted Balderamos for aggravated assault with a deadly
weapon and for retaliation. Balderamos pleaded guilty to aggravated assault
with a deadly weapon. The trial court deferred adjudication and placed him on
community supervision for five years. In the “unadjudicated judgment,” the trial
court entered “Deferred” in the section labeled “Findings on Deadly Weapon.”
The State subsequently filed a petition to proceed to adjudication, alleging
four grounds for revocation. The State waived the allegations in paragraph three,
and Balderamos pleaded “true, but” to the allegations in paragraphs one, two,
and four. The trial court found that Balderamos had violated all three paragraphs
and sentenced him to ten years and one day in prison. In the judgment
adjudicating guilt, the trial court entered “Yes, an automobile” in the section
labeled “Findings on Deadly Weapon.” Balderamos brought this appeal.2
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Balderamos first attempted to appeal pro se from the judgment
adjudicating his guilt, but this court dismissed that appeal for want of jurisdiction
based on an untimely-filed notice of appeal. See Balderamos v. State, No. 02-
10-00088-CR, 2010 WL 1730817, at *1 (Tex. App.—Fort Worth Apr. 29, 2010, no
pet.) (mem. op., not designated for publication). The court of criminal appeals
subsequently granted Balderamos an out-of-time appeal because, although the
Tarrant County District Clerk had not timely received Balderamos’s notice of
appeal, evidence existed that he had timely mailed it. See Ex Parte Balderamos,
No. AP-76968, 2013 WL 458003, at *1 (Tex. Crim. App. Feb. 6, 2013) (not
designated for publication).
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III. DEADLY-WEAPON FINDING
In his first issue, Balderamos contends that the trial court erred by making
a deadly-weapon finding in the judgment adjudicating his guilt because the trial
court did not make a deadly-weapon finding in the deferred adjudication
community supervision order. Balderamos claims that the trial court should have
made the deadly-weapon finding in the deferred adjudication order because the
promulgated deferred adjudication form contains a “Findings on Deadly Weapon”
section.
One purpose of entering an affirmative deadly-weapon finding is to assist
the Texas Department of Criminal Justice (TDCJ) in calculating a prisoner’s
parole-eligibility date. See Johnson v. State, 233 S.W.3d 420, 424 (Tex. App.—
Fort Worth 2007, pet. ref’d); Kinkaid v. State, 184 S.W.3d 929, 930 (Tex. App.—
Waco 2006, no pet.). The Texas Code of Criminal Procedure requires that a trial
court enter a separate and specific deadly-weapon finding in a judgment so that
the TDCJ can compute a defendant’s parole date. See Tex. Code Crim. Proc.
Ann. art. 42.12, § 3g(a)(2) (West Supp. 2013); Lafleur v. State, 106 S.W.3d 91,
94 (Tex. Crim. App. 2003) (citing Polk v. State, 693 S.W.2d 391, 394 (Tex. Crim.
App. 1985)); Johnson, 233 S.W.3d at 424. Parole eligibility applies to
incarcerated individuals and is not applicable or appropriate in an order of
deferred adjudication. See Tex. Gov’t Code Ann. § 508.145(d) (West Supp.
2013); Kinkaid, 184 S.W.3d at 930; Marshall v. State, 860 S.W.2d 142, 143 (Tex.
App.—Dallas 1993, no pet.); see also Upton v. State, No. 05-96-00931-CR, 1998
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WL 8689, at *6 (Tex. App.—Dallas Jan. 13, 1998, no pet.) (not designated for
publication) (“Nothing in the Texas Code of Criminal Procedure required the trial
judge to make the deadly weapon finding prior to adjudicating appellant’s guilt.”).
In this case, the indictment alleged that Balderamos “did use or exhibit a
deadly weapon during the commission of the assault, to wit: an automobile.”
Balderamos pleaded guilty to the offense and signed a judicial confession stating
that he “committed each and every act alleged” in the indictment. The trial court
found sufficient evidence to establish Balderamos’s guilt but deferred
adjudicating his guilt, deferred entering a deadly-weapon finding, and instead
placed him on deferred adjudication community supervision. Thus, when the trial
court entered the unadjudicated judgment on Balderamos’s guilty plea deferring
adjudication, parole eligibility was not applicable and a deadly-weapon finding
was not necessary. See Kinkaid, 184 S.W.3d at 930. When the trial court later
adjudicated Balderamos’s guilt and assessed punishment, article 42.12, section
3g(a)(2) required that the trial court enter a deadly-weapon finding. See Tex.
Code Crim. Proc. Ann. art. 42.12, § 3g(a)(2); Lafleur, 106 S.W.3d at 94 (citing
Polk, 693 S.W.2d at 394). We hold that the trial court did not err by entering the
deadly-weapon finding in the judgment adjudicating Balderamos’s guilt and
overrule his first issue.
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IV. DEADLY-WEAPON ADMONISHMENT
In his second issue, Balderamos contends that his guilty plea was
involuntary because the trial court failed to admonish him that a deadly-weapon
finding would affect his eligibility for parole.
A defendant must raise complaints involving an original plea proceeding
immediately after a trial court imposes a deferred adjudication order. See
Manuel v. State, 994 S.W.2d 658, 661–62 (Tex. Crim. App. 1999). An appellant
cannot attack his original guilty plea in an appeal from a judgment adjudicating
guilt unless the judgment is void. Nix v. State, 65 S.W.3d 664, 667–68 (Tex.
Crim. App. 2001); see also Jordan v. State, 54 S.W.3d 783, 785 (Tex. Crim. App.
2001) (stating that a judgment is rarely void and that “[a]n ‘involuntary plea’ does
not constitute one of those rare situations”); Jones v. State, No. 03-10-00546-CR,
2013 WL 1955803, at *2 (Tex. App.—Austin May 8, 2013, no pet.) (mem. op., not
designated for publication) (holding that defendant could not challenge the
voluntariness of her original guilty plea in an appeal following a judgment
adjudicating her guilt); Engleton v. State, No. 11-11-00017-CR, 2012 WL
4754914, at *1 (Tex. App.—Eastland Oct. 4, 2012, pet. ref’d) (mem. op., not
designated for publication) (holding that voluntariness of appellant’s original guilty
plea could not be raised in direct appeal from judgment adjudicating guilt).
Balderamos’s contention that his guilty plea was involuntary is an issue
relating to the original plea hearing, and he may not raise it in a direct appeal
from the judgment adjudicating his guilt. See Nix, 65 S.W.3d at 668 n.14;
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Manuel, 994 S.W.2d at 661–62; see also Jordan, 54 S.W.3d at 785 (noting that
involuntariness claims are cognizable on writ of habeas corpus). We overrule
Balderamos’s second issue.
V. CONCLUSION
Having overruled both of Balderamos’s issues, we affirm the trial court’s
judgment.
/s/ Sue Walker
SUE WALKER
JUSTICE
PANEL: LIVINGSTON, C.J.; DAUPHINOT and WALKER, JJ.
DO NOT PUBLISH
Tex. R. App. P. 47.2(b)
DELIVERED: March 13, 2014
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