Charles Sterling Mobley v. State ( 2006 )

NO. 07-05-0072-CR
IN THE COURT OF APPEALS
FOR THE SEVENTH DISTRICT OF TEXAS
AT AMARILLO
PANEL D
APRIL 10, 2006
______________________________
CHARLES STERLING MOBLEY,
Appellant
v.
THE STATE OF TEXAS,
Appellee
_________________________________
FROM THE 108TH DISTRICT COURT OF POTTER COUNTY;
NO. 47,640-E; HON. DAVID L. GLEASON, PRESIDING
_______________________________
Memorandum Opinion
______________________________
Before QUINN, C.J., and REAVIS and CAMPBELL, JJ.
Charles Sterling Mobley appeals his conviction for possessing a controlled
substance and the accompanying four year sentence. The conviction occurred after the
State moved to adjudicate his guilt; adjudication of the latter had previously been deferred
per a plea bargain. Appellant raises six issues which we address in turn, and upon
addressing them we will affirm the judgment as modified.
Issues one and two implicate the trial court’s decision to adjudicate appellant’s guilt.
Because the issues implicate that decision, we have no jurisdiction to consider them.
Hogans v. State, 176 S.W.3d 829, 832 (Tex. Crim. App. 2005).
Through issues three and four, appellant contends that the trial court erred in stating,
within the judgment, that appellant agreed to the sentence and wished not to appeal. This
purportedly was error because no evidence appears of record supporting those statements.
Having reviewed the record, we agree with appellant. However, the error does not affect
the conviction or sentence imposed. Thus, we will simply modify the judgment to redact
those statements from it. TEX . R. APP . P. 43.2(b) (allowing an appellate court to enter the
judgment which the trial court should have entered).
Through his last two points, appellant questions the validity of the sentence imposed.
It is purportedly invalid because the trial court failed to take judicial notice of the evidence
admitted at the original plea hearing. Thus, it had no evidence upon which to determine
the amount of methamphetamine appellant possessed, which, in turn prevented it from
determining the category of the crime (e.g. first, second or third degree felony) and the
quantum of punishment to impose. Unmentioned by appellant, however, are the facts
(appearing of record) that 1) the State indicted appellant for possessing “one gram or more
but less than four grams” of methamphetamine, 2) appellant judicially confessed in writing
to the veracity of the accusation in the indictment as part of the original plea bargain, 3)
both the indictment and confession appeared in the clerk’s record, and 4) the trial court
expressly mentioned the confession several times before assessing punishment. As
argued by appellant, the trial judge ultimately convicting him and levying sentence differed
from the one who initially deferred appellant’s adjudication of guilt. Given that the second
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judge was not involved in the original plea hearing but knew of appellant’s confession, that
both the confession and indictment were part of the clerk’s record, and that the court
expressly referred to the confession, one can reasonably deduce that the trial court took
judicial note of that confession as well as its scope and effect when levying sentence. See
Holloway v. State, 666 S.W.2d 104, 108 (Tex. Crim. App. 1984) (holding that a trial court
may judicially note, sua sponte, the case record). Furthermore, appellant cites us to
nothing that pretermits a trial court from relying on a prior confession in determining the
category of felony involved or in assessing punishment. Finally, we note that the
punishment levied (i.e. four years imprisonment and an $800 fine) was well within the range
allowed when one (like appellant) commits a felony of the third degree for possessing more
than one but less than four grams of a controlled substance. See TEX . HEALTH & SAFETY
CODE ANN . §481.115(c) (indicating that such an offense is a felony of the third degree);
TEX . PENAL CODE ANN . §12.34 (specifying the range of punishment for a felony of the third
degree to be imprisonment up to ten years and a fine up to $10,000).
Accordingly, we 1) overrule issues one, two, five and six, 2) sustain issues three and
four, 3) modify the trial court’s judgment to redact the statements that appellant accepted
the sentence and wished not to appeal, and 4) affirm the judgment as modified.
Brian Quinn
Chief Justice
Do not publish.
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