Mario Keith Garza v. State

NUMBER 13-12-00168-CR
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI – EDINBURG
MARIO KEITH GARZA, Appellant,
v.
THE STATE OF TEXAS, Appellee.
On appeal from the 329th District Court
of Wharton County, Texas.
MEMORANDUM OPINION
Before Chief Justice Valdez and Justices Benavides and Longoria
Memorandum Opinion by Chief Justice Valdez
Appellant, Mario Keith Garza, pleaded guilty to possession of a controlled
substance, a third degree felony. See TEX. HEALTH & SAFETY CODE ANN. § 481.115
(West 2010). The trial court held a punishment hearing and sentenced Garza to ten
years’ incarceration, probated for five years. Subsequently, the State filed a motion to
revoke Garza’s probation. Following a hearing on the State’s motion to revoke, the trial
court sentenced Garza to ten years’ confinement. By one issue, Garza contends that
the trial court violated his due process rights by failing to consider the full range of
punishment. We modify the judgment and affirm as modified.
I. DISCUSSION
A trial court denies due process and due course of law if it arbitrarily refuses to
consider the entire range of punishment for an offense and imposes a predetermined
punishment. McClenan v. State, 661 S.W.2d 108, 110 (Tex. Crim. App. 1983),
overruled on other grounds by De Leon v. Aguilar, 127 S.W.3d 1, 5 (Tex. Crim. App.
2004). In Teixeira v. State, the Texarkana court of appeals emphasized that, for one to
preserve a complaint for appeal contending the trial court failed to consider the full
range of punishment, the error, if any, must be raised to the trial court. 89 S.W.3d 190,
192 (Tex. App.—Texarkana 2002, pet. ref’d). In Teixeira, the appellant failed to raise
the alleged error at the trial court level, and the court of appeals held that he waived the
error for purposes of appellate review. Id. In Garza v. State, this Court also
determined, in an unpublished opinion, that in order to preserve a complaint for
appellant review that the trial court failed to consider the full range of punishment, the
appellant must object to the trial court. No. 13-08-00244-CR, 2009 Tex. App. LEXIS
6866, at *3–5 (Tex. App.—Corpus Christi Aug. 28, 2009, no pet.) (mem. op., not
designated for publication).
In this case, Garza did not object at the trial court level on the basis that the trial
court failed to consider the full range of punishment. Therefore, the objection raised on
appeal was not raised before the trial court and was thereby waived. See Cummings v.
2
State, 163 S.W.3d 772, 776 (Tex. App.—Texarkana 2005, pet. ref’d); Teixeira, 89
S.W.3d at 192; Washington v. State, 71 S.W.3d 498, 499 (Tex. App.—Tyler 2002, no
pet.); see also Hull v. State, 67 S.W.3d 215, 217 (Tex. Crim. App. 2002); Garza, 2009
Tex. App. LEXIS 6866, at *3–5. We overrule Garza’s sole issue.1
II. MODIFICATION
The judgment revoking Garza’s community supervision states that the offense
Garza was convicted of committing is “criminal attempt—possession of a controlled
substance with intent to deliver.” The judgment cites that the statute for the offense
committed by Garza is section 15.01 of the penal code. See TEX. PENAL CODE ANN.
§ 15.01 (West 2011).
However, at his plea hearing, the trial court asked Garza if he “understood” that
he was pleading guilty to possession of a controlled substance, a third degree felony.
The prosecutor stated, “The terms of the plea is that Count I will be set aside at the time
of the hearing under Penal Code 12.44 with the admission of guilt. . . . And Count 2,
which is what we’re going forward is on solely the possession, we’ve abandoned our
allegation that he had intent to deliver or that it was a drug free zone.” Garza then
pleaded guilty to that offense, and the trial court accepted his plea. The plea papers
state that Garza pleaded guilty to the offense of possession of a controlled substance
and cite section 481.115 of the Texas Health and Safety Code. See TEX. HEALTH &
SAFETY CODE ANN. § 481.115.
1
We note that in the law section of his brief, Garza cites law concerning whether a trial court is
biased. To the extent that Garza attempts to challenge the trial court’s judgment on the basis that the trial
court was biased, we conclude that issue is not adequately briefed because Garza has not provided any
argument with citation to appropriate authority supporting that argument. See TEX. R. APP. P. 38.1(i).
Therefore, we will not address it. See id.
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The trial court’s judgment mistakenly states that Garza was convicted under
section 15.01 of the penal code. See TEX. PENAL CODE ANN. § 15.01. As explained
above, Garza was convicted of possession of a controlled substance pursuant to
section 481.115 of the health and safety code. See TEX. HEALTH & SAFETY CODE ANN. §
481.115. The Texas Rules of Appellate Procedure give this Court authority to modify
judgments sua sponte to correct typographical errors and make the record speak the
truth. TEX. R. APP. P. 43.2; French v. State, 830 S.W.2d 607, 609 (Tex. Crim. App.
1992); Rhoten v. State, 299 S.W.3d 349, 356 (Tex. App.—Texarkana 2009, no pet.);
Gray v. State, 628 S.W.2d 228, 233 (Tex. App.—Corpus Christi 1982, pet. ref’d).
Therefore, we hereby modify the judgment to indicate that Garza was convicted of the
offense of possession of a controlled substance pursuant to section 481.115 of the
Texas Health and Safety Code. See TEX. HEALTH & SAFETY CODE ANN. § 481.115; see
also TEX. R. APP. P. 43.2; French, 830 S.W.2d at 609; Rhoten, 299 S.W.3d at 356;
Gray, 628 S.W.2d at 233.
III. CONCLUSION
We modify the trial court’s judgment and affirm as modified.
________________________
ROGELIO VALDEZ
Chief Justice
Do not publish.
TEX. R. APP. P. 47.2(b).
Delivered and filed the
9th day of May, 2013.
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