Aguilar, Angel v. State ( 2012 )

AFFlRIiEl) as Modified; Opinion Filed September 26, 2012.
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No. 05-12-00219-CR
No. 05-12-00220-CR
ANGEL AGUILAR, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 265th Judicial District Court
Dallas County, Texas
Trial Court Cause Nos. F10-45384-R, F10-45385-R
MEMORANDUM OPINION
Before Justices Bridges, Richter, and Lang
Opinion By Justice Lang
Angel Aguilar waived a jury and pleaded guilty to delivery of heroin in an amount of four
grams or more but less than 200 grams and possession with intent to deliver heroin in an amount of
four grams or more but less than 200 grams. See TEx. HEALTH & SAFETY CODE ANN. 481.1 12(a).
§
(d) (West 2010). The trial court assessed punishment at eight years’ imprisonment and a $500 fine
in each case. In three points of error, appellant contends the deadly weapon finding should be
deleted in one case, and the judgments should be modified to show he entered open pleas. We
modify the trial court’s judgments and affirm as modified. The background of the cases and the
evidence admitted at trial are well known to the parties, and we therefore limit recitation of the facts.
We issue this memorandum opinion pursuant to Texas Rule of Appellate Procedure 47.4 because
the law to he applied in the case is well settled.
DIADLY WEroN FINDING
In his first point of error, appellant contends the judgment in cause no. 05—1 2—00220—CR
should he modified to delete the affirmative deadly weapon finding. The State responds the record
contains sufficient evidence to support the deadly weapon finding.
Article 42.12, section 3g(a)(2) octhe Texas Code of Criminal Procedure permits the entry
of a deadly weapon finding when it is shown that a defendant used or exhibited a deadly weapon in
the commission of the offense. See TEX. CODE CIUM. Pioc. ANN. art. 42.12. 3g(a)(2) (West Supp.
2011). A deadly weapon means a firearm or anything that in the manner of its use or intended use
is capable of causing death or serious bodily injury. TEx. PENAL CODE ANN § l.07(a)(17) (West
Supp. 2012), In the context of a deadly weapon finding, the term “use” means any employment of
a deadly weapon. even simple possession. if that possession facilitates the associated felony. See
Coleman v. State, 145 S.W.3d 649, 652 (Tex. Crim, App. 2004); Smith v. State, 176 S.W.3d 907,
919 (Tex. 2005, pet. ref d).
The indictment alleged appellant used or exhibited a deadly weapon, a firearm, during
commission of the offense. Appellant pleaded guilty and judicially confessed to the offense as
alleged in the indictment. Appellant’s judicial confession and stipulation of evidence tracks the
language in the indictment, including the use and exhibition of a deadly weapon, a firearm.
Appellant’s judicial confession sufficiently supports the deadly weapon finding contained in the
judgment. See Pitts v. State, 916 S.W.2d 507, 5 10 (Tex. Crirn. App. 1996) (it is well settled that a
judicial confession, standing alone, is sufficient to sustain a conviction upon a guilty plea); see also
Alexander v. State, 868 S.W.2d 356, 360 (Tex. App.—DalIas 1993, no pet.). We conclude the
evidence presented is sufficient to Support the affirmative deadly weapon finding. We overrule
appellant S fi i-st point of error.
MOnIFY .JUDGMENTS
In his second and third points of error, appellant contends thejudgments should be modified
to show he entered “open” guilty pleas and did not have a plea agreement. The State agrees
appellant is entitled to have the judgments modified as he requests.
The judgments state there was a plea agreement for eight years’ imprisonment. The record
shows there was no plea bargain agreement in either case. Thus, the judgments are incorrect. We
sustain appellant’s second and third points oferror. We modify the judgments to show the terms of
plea bargain were “open.” See TEx. R. Api. P.43.2(b); Biglev v. State, 865 S.W.2d 26, 27—28 (Tex.
Crim. App. 1993); Asherrv v. State, 8 13 S.W.2d 526, 529-30 (Tex. App.—DaIlas 1 991, pet. ref d).
We note there are two other errors contained in the judgment for cause no. 05-12-00220-CR.
First, the judgment does not show a fine. The record shows the trial court orally pronounced a $500
fine in each case when it found appellant guilty and imposed the eight-year sentences. When a
conflict exists between the oral pronouncement and the written judgment, the oral pronouncement
controls. See C’ojjy v. State, 979 S.W.2d 326, 328 (Tex. Crim, App. 1998). We modify the
judgment in cause no. 05-12-00220-CR to include the $500 fine. See TEx. R. App. p. 43.2(b);
Bigley, 865 S.W.2d at 27-28; Asberry, 813 S.W.2d at 529-30.
The judgment in cause no. 05-12-00220-CR identifies the offense for which appellant was
convicted as “delivery controlled substance heroin 4G.” Appellant was indicted for and pleaded
guilty to possession with intent to deliver heroin in an amount of four grams or more but less than
200 grams. We modify the judgment to show the correct name of the offense for which appellant
was convicted is “possession with intent to deliver heroin 4G.” Id.
CONCLUSION
In cause no. 05-12-002 1 9-CR, we modify the judgment to show the terms of plea bargain are
“open.” As modified, we affirm the trial court’s judgment.
In cause no. 05-12-00220—CR, we modify the judgment to show: (1) the name of the offense
is “possession with intent to deliver heroin 4G;” (2) the terms of plea bargain are “open;” and (3)the
fine is $500. As modified, we affirm the trial court’s judgment.
DOUGLAI S. LANG /
J UST1C”
Do Not Publish
TEX. R. Apr. P. 47
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JUDGMENT
ANGEL AGUILAR, Appellant Appeal from the 265th Judicial District
Court of Dallas County, Texas. (Tr.Ct.No.
o. 05—l2-002 19-CR V. F 1 O-45384-R).
Opinion delivered by Justice Lang, Justices
THE STATE OF TEXAS, Appellee Bridges and Richter participating.
Based on the Court’s opinion of this date, the judgment of the trial court is MODIFIED
as follows:
The section entitled “Terms of Plea Bargain” is modified to show “Open.”
As modified, we AFFIRM the trial court’s judgment.
Judgment entered September 26, 2012.
DOUGLAS S. LANG
JUSTI