Abate, Markos v. State ( 2013 )

Affirmed, in part; Affirmed as modified, in part; and Reversed and remanded, in part and
Opinion Filed February 14, 2013
InThe
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No. OS-i 1-01320-CR
No. 05-11-01321-CR
No, 05-11-01322-CR
No. 05-11-01323-CR
No, 05-1 1-01324-CR
MARKOS ABATE, Appellant
V.
TIlE STATE OF TEXAS, Appellee
On Appeal from the 203rd Judicial District Court
Dallas County, Texas
Trial Court Cause Nos. F10-34975-P, F1O-35830-P, F10-35831-P,
F01-37219-P, & F01-37220-P
MEMORANDUM OPINION
Before Justices FitzGerald, Fillmore, and Evans
Opinion by Justice Fillmore
The trial court convicted Markos Abate of five drug-related offenses and assessed
punishment of fifteen years’ imprisonment on four of the offenses and ten years’ imprisonment
on the fifth offense In his first three issues, Abate requests we reform the judgment in two of the
cases. In his final two issues, Abate asserts the ten-year sentence is void because it is outside the
range of punishment for a state jail felony and, in the alternative, requests that we abate the
appeal and allow the trial court to resolve certain conflicts in the clerk’s record.
\Ve affirm the trial court’s judgments in cause numbers Fl035830P (051 l-0i321-CR)
and F I 03583 I -P (05-11 -01 322-CR). We modil’ the trial court
s judgment (1) in cause number
5
Fl034975P to reflect Abate was convicted of a second degree felony; (2) in cause number F0l
372 l9P to reilect Abate was convicted ot possessing, with intent to deliver, a controlled
substance in an amount of four grams or more hut less than 200 grams and to reflect the offense
occurred on March 2, 2001; and (3) in cause number F0l-.37220P to reflect Abate was convicted
of a state jail felony. As modified, we affirm the trial court’s judgments in cause numbers FlO
34975P (05l l-01320CR) and F0137219P (05l l0l323-CR). Because the punishment
assessed by the trial court in cause number F01-37220P is outside the punishment range for a
state jail felony, we reverse that portion of the judgment assessing punishment and remand cause
number F01-37220-P (05-I 1-01324-CR) for a new trial on punishment. See TEx. CODE CRIM.
PROC. ANN. art. 44.29(b) (West Supp. 2012).
The background of these cases is well known to the parties, and we therefore limit
recitation of the facts. We issue this memorandum opinion because the law to be applied is well
settled. See TEx. R. App. P. 47.2(a), 47.4.
Background
In 2001, Abate was indicted for possession of methamphetamine in the amount of one
gram or more but less than four grams (FO I -37220-P) and for possessing, with intent to deliver,
four grams or more but less than 200 grams of cocaine (FOl-37219-
t P). The trial court granted
the State’s motion to reduce the charge in cause number FOl-37220-P to the lesser included
offense of possession of methamphetamine under one gram. Abate then pleaded guilty to both
charges. The trial court deferred the adjudication of Abate’s guilt and placed Abate on
The clerks record originally filed in cause number F0i-37220-P appears to contain a numherofdocuments from cause
number F0l-377l9-P with
a “20” handwritten over the “19’ We requested the clerk iile a supplemental record containing the actual
documents relating to cause number
FOl-37220-P. This opinion is based on the supplemental clerk’s record.
community supervision for two years on the methamphetamine charge and four years on the
cocaine charge. The period of community supervision in both cases was ultimately extended,
through several orders by the trial court, until February 12, 2013.
in September 2010, Abate was charged in cause number Fl0-34975-P with possessing,
with intent to deliver, four grams or more but less than 200 grams of methamphetamine.
The
trial court granted the State’s motion to reduce the charge to the lesser included offense of
possessing, with intent to deliver, one or more grams but less than four grams of
methamphetamine. Abate pleaded guilty to the charge. The trial court deferred an adjudication
of guilt and placed Abate on community supervision for a period of seven years.
In February 2011, Abate was charged with possessing, with intent to deliver, one gram or
more hut less than four grams of methamphetamine (Fl0-35830-P) and possessing, with intent to
deliver, four grams or more but Less than two hundred grams of gamma hydroxybutyrate (FlO
35831-P), The State also tiled motions to proceed to an adjudication of guilt in cause numbers
FO 1-3721 9-P, FO 1-37220-P. and Ft 0-34975-P.
Abate pleaded guilty to the two new charges and pleaded true to the allegations he
violated the provisions of community supervision in the other three cases. The trial court found
Abate guilty in cause numbers F 10-35830-P and F10-35831-P and assessed punishment of
fifteen years’ imprisonment in each case. The trial court adjudicated Abate guilty in the
remaining three cases and assessed punishment of fifteen years’ imprisonment in cause numbers
F 10-34975-P and F01-372 19-P and ten years’ imprisonment in cause number F01-37220-P.
Modification of Judgment
In his first three issues, Abate asserts the trial court’s judgment in cause number FlO
34975-P should be modified to reflect a conviction for a second degree felony and the
trial
court’s judgment in cause number F01-37219-P should be modified to reflect the correct offense
3
and the correct ollense date. [his Court has the power to modily an mcorrect judgm
ent to make
the record speak the truth when we have the necessary information to do so. See
TFx. R. App. P.
432tb); Biglcv v. State, 865 S.W2d 26, 2728 (Tex. Crim. App. 1993): Asherr’ v, State,
813
S.W.2d 526, 52930 (Te. App.—Dallas 1993, pet. ref’d).
In cause number Fl034975-P, Abate was indicted for possessing, with intent to deliver
,
four grams or more but less than 200 grams of methamphetamine, a first degree felony
. See TEx.
HEALTH & SAFETY CODE ANN. § 481,102(6), 481.112(a),(d) (West 2010). The trial court
granted the State’s motion to reduce the charge to the lesser included offense of posses
sing, with
intent to deliver, one gram or more but less than four grams of methamphetam
ine, a second
degree felony. See id. § 481.102(6), 481.1 12(a),(c). The trial court admonished Abate that he
was charged with a second degree felony, and the order of deferred adjudication
indicates the
degree of offense is a second degree felony. However, the judgment adjudicating
guilt reflects
the degree of offense is a first degree felony. We resolve Abate’s first issue in
his favor and
modify the trial court’s judgment in cause number F 10-34975-P (05-1 1-0132
0-CR) to reflect
Abate was convicted of a second degree felony.
In cause number F01-37219-P, Abate was indicted for possessing, with intent
to deliver,
four grams or more but less than 200 grams of cocaine. The alleged offense date
was March 2,
2001. Abate’s plea documents and judicial confession reflect that he pleaded
guilty to
possession of cocaine with intent to deliver and that the offense occurred on March
2, 2001. The
judgment adjudicating guilt, however, reflects an offense of “Manufactoring
[sic] controlled
subst., 4G” and an offense date of March 2, 2011. We resolve Abate’s second and
third issues in
his favor and modify the trial court’s judgment in cause number F0l-372 19-P (05-1
1-01323-CR)
to reflect Abate was convicted of possessing, with intent to deliver, four grams or
more but less
than 200 grams of a controlled substance and the offense date was March 2,2001.
4
Illegal Sentence
In his tburth issue, Abate contends his sentence in cause number F0l-37220P
is void
because it exceeds the punishment range for a state jail felony and, therefore, he
is entitled to a
new punishment hearing. In his fifth issue, Abate argues, alternatively, that
this Court should
abate the case to allow the trial court to resolve conflicts in the clerk’s record
. Because the
supplemental clerk’s record has resolved any inconsistencies in the original record
filed in this
appeal, we resolve Abate’s fifth issue against him.
Abate was indicted for possession of one gram or more but less than four
grams of
methamphetamine, a third degree felony. See TEx, HEALTH & SuETY CoDE ANN.
481 102(6) 481 115(a) (c) (West 2010) Uhe trial Lourt granted the State s motion to reduce
the charged offense to possession of methamphetamine under one gram, a state
jail felony. See
TEx. HEALTH & SAFETY CoDE ANN. §* 481.102(6), 481.1 15(a),(b). The deferred adjudication
order states the degree of the offense is “State Jail.” Further, during the revoca
tion hearing, the
trial court informed Abate that cause number FOl-37220-P “is a state jail felony
.” The trial
court’s judgment, however, states the degree of offense is a third degree felony
. Accordingly, on
our own motion, we modify the trial court’s judgment adjudicating guilt to reflect
that Abate was
convicted of a state jail felony. See TEx. R, APP. P. 43.2(b); Bigley, 865 S.W.2
d 27—28; Asberry,
813 S.W.2d at 529—30.
The punishment range for a state jail felony is confinement in a state jail for any
term not
more than two years or less than 180 days and, in addition, an optional fine
not to exceed
$10,000. TEX. PENAL CODE ANN. § 12.35(a),(b) (West Supp. 2012). The trial court sentenced
Abate to ten years’ imprisonment—a sentence outside the maximum range of
punishment for a
state jail felony.
5
A defendant has an “absolute and nonwaiveable right to be sentenced
within the proper
range of punishment.” Sj,eth v State, ( S.W.3d 530, 532—33 (Tex. Crim. App. 1999). A
sentence that is outside the maximum or minimum range of punishment is unauth
orized by law
and is, therefore, illegal. Mi:ell v. State. 1 19 S.W.3d 804, 806 (Tex. Crim.
App. 2003). As a
result, a sentence outside the statutory punishment range for an offense
is void and must be
reversed. See Kern v, State, 892 S.W.2d 894, 896 (Tex. Crim. App. 1 994);
Farias v. State, No.
01-12-00205-CR, 2012 WL 5360981, at *2 (Tex, App.—Houston [1st
Dist.i Nov. 1, 2012, pet.
tiled).
We resolve Abate’s fourth issue in his favor. We modify the trial court’s
judgment to
reflect the correct degree of the offense. We reverse that portion of the judgment assessing
punishment and remand cause number F0l-37220-P (05-I 1-0 1324-CR)
for a new trial on
punishment. See TEx. CoDE CRIM. PRoc. ANN. art. 44.29(b).
ROBERT M. FILLMORE
JUSTICE
Do Not Publish
TEx. R. Apr. P. 47
11 1320F.U05
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JUDGMENT
MARKOS ABATE. Appellant On Appeal from the 203rd Judicial District
Court, Dallas County, Texas
No. 05ll0l320CR V. Trial Court Cause No, F1034975P.
Opinion delivered by Justice Fillmore.
THE STATE OF TEXAS, Appellee Justices FitzGerald and Evans participating.
Based on the Court’s opinion of this date, the judgment of the trial court is MODIFIED
as follows:
The section of the judgment titled ‘Degree” shall state “Second Degree Felony.”
As REFORMED, the judgment is AFFIRMED.
Judgment entered this 14111 (lay of February, 2013.
ROBERT M. FILLMORE
JUSTICE
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JUDGMENT
MARKOS ABATE, Appellant On Appeal from the 203rd Judicial District
Court. Dallas County, Texas
No. 051 10132lCR V. Trial Court Cause No. FI0-35830P.
Opinion delivered by Justice Fillmore.
THE STATE OF TEXAS, Appellee Justices FitzGerald and Evans participating.
Based on the Court’s opinion of this date, the judgment of the trial court is AFFIRMED.
Judgment entered this 1 4
th
day of February, 2013.
ROBERT M. FILLMORE
JUSTICE
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JUDGMENT
MARKOS ABATE, Appellant On Appeal from the 203rd Judicial District
Court. Dallas County, Texas
No. 05-liM1322CR V. Trial Court Cause No, Fl03583IP.
Opinion delivered by Justice Fillmore.
THE STATE OF TEXAS, Appellee Justices FitzGerald and Evans participating.
Based on the Court’s opinion of this date, the judgment of the trial court is AFFIRMED.
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Judgment entered this day of February, 2014.
ROBERT M. FILLMORE
JUSTICE
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JUDGMENT
MARKOS ABATE, Appellant On Appeal from the 203rd Judicial District
Court, Dallas County, Texas
No. 05l l0l323-CR V. Trial Court Cause No. F01-37219P.
Opinion delivered by Justice Fillmore.
THE STATE OF TEXAS, Appellee Justices FitzGerald and Evans participating.
Based on the Court’s opinion of this date, the judgment of the trial court is MODIFIED
as follows:
The section of the judgment titled “Offense for which Defendant convicted” shall
state “Possession, with intent to deliver, a controlled substance in an amount of
four grams or more but less than 200 grams.”
The section of the judgment titled “Date of Offense” shall state “3/2/2001.”
As REFORMED, the judgment is AFFIRMED.
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Judgment entered this day of February, 2013.
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ROBERT M. FILLMORE
JUSTICE
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JUDGMENT
MARKOS ABATE, Appellant On Appeal from the 203rd Judicial District
Court, Dallas County, Texas
No. 051 1-0l324CR V. Trial Court Cause No. F0l-37220P.
Opinion delivered by Justice Fillmore.
THE STATE OF TEXAS, Appellee Justices FitzGerald and Evans participating.
Based on the Court’s opinion of this date, the judgment of the trial court is MODIFIEI)
as follows:
The section of the judgment titled “Degree” shall state “State Jail Felony.”
The judgment of the trial court is REVERSED and the cause REMANDED for further
proceedings pursuant to Tex. Code Crim. Proc. Ann. Art. 44.29(b).
Judgment entered this l4h1 day of February, 2013.
*
ROBERT M. FILLMORE
JUSTICE