Full Opinion (html_with_citations)

Opinion filed December 30, 2016




                                     In The


        Eleventh Court of Appeals
                                  __________

                   Nos. 11-14-00350-CR & 11-14-00353-CR
                                 __________

                 STEVEN ALFONZO DELEON, Appellant
                                        V.
                      THE STATE OF TEXAS, Appellee


                     On Appeal from the 104th District Court
                              Taylor County, Texas
                     Trial Court Cause Nos. 19080B & 18365B


                       MEMORANDUM OPINION
       Steven Alfonzo Deleon appeals the trial court’s imposition of consecutive
sentences in two convictions: one conviction for aggravated robbery and a second
conviction for evading arrest in a motor vehicle. Appellant and the State reached a
plea agreement that the trial court accepted in open court. That agreement provided
that Appellant would serve concurrent sentences for his two convictions. Appellant
claims that the trial court abused its discretion when it entered an order that
cumulated the sentences and that Appellant had a right to enforce the plea agreement
that the trial court accepted. The State claims that Appellant’s appeals are moot
because the trial court corrected the sentencing error with judgments nunc pro tunc.
We modify and affirm the judgment for aggravated robbery, and we affirm the
judgment for evading arrest.
                                    I. Background Information
        The grand jury indicted Appellant for aggravated robbery in Cause
No. 19080B and alleged that, while in the course of committing theft, Appellant
exhibited a deadly weapon and intentionally and knowingly placed Aaron Cowart in
fear of imminent bodily injury and death. In Cause No. 18365B, Appellant had
previously pleaded guilty to evading arrest in a motor vehicle, and the trial court had
convicted Appellant and had placed him on community supervision for seven years.
The State filed a motion to revoke Appellant’s community supervision.
        Appellant, as part of a plea agreement,1 pleaded guilty to aggravated robbery
in Cause No. 19080B.               The trial court assessed Appellant’s punishment at
confinement for fifty years and sentenced him. Appellant also pleaded “true” to the
allegations in the State’s motion to revoke in Cause No. 18365B. The trial court
then revoked Appellant’s community supervision and sentenced him to confinement
for seven years for that offense. The trial court made a deadly weapon finding in
Cause No. 19080B, then ordered that the sentence in that case be served
consecutively to the sentence in Cause No. 18365B. In each cause, the trial court
later entered a judgment nunc pro tunc in which it ordered that the sentences run
concurrently.



        1
         As part of the plea agreement, the State agreed to drop three other charged offenses, a second-
degree felony for robbery, a state jail felony for debit card abuse, and a charge for harassment of a public
servant.

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                                       II. Analysis
         Appellant argues that his plea was rendered involuntary because the trial court
did not adhere to the plea agreement that provided for concurrent sentences, and
although he did not ask to withdraw his guilty plea, he claims that the trial court did
not give him an opportunity to do so. The State argues that the appeals are moot
because the trial court entered judgments nunc pro tunc to change the sentences from
cumulative to concurrent. We disagree that Appellant’s appeals are moot. At the
time that the trial court entered the judgment nunc pro tunc in each cause, Appellant
had already filed these appeals, and the appellate records had also been filed in this
court. Consequently, the trial court had no jurisdiction to enter the nunc pro tunc
judgments, and the judgments nunc pro tunc are null and void. See TEX. R. APP. P.
23.1, 25.2(g); Williams v. State, No. 03-11-00598-CR,
2013 WL 6921489
, at *3
(Tex. App.—Austin Dec. 31, 2013, pet. ref’d) (mem. op., not designated for
publication); see also Perkins v. State,
505 S.W.2d 563, 564
 (Tex. Crim. App. 1974).
Because the judgments nunc pro tunc are void, these appeals are not moot, and this
court can modify the judgments to follow the plea agreement accepted by the trial
court.
         A plea bargain is a contractual arrangement consisting of three parts: a plea of
guilty, the consideration for it, and the approval by the court of the agreement.
Ortiz v. State,
885 S.W.2d 271, 273
 (Tex. App.—Corpus Christi 1994), aff’d,
933 S.W.2d 102
 (Tex. Crim. App. 1996). We note that, “[b]ecause plea bargains are
contractual agreements between the state and defendant, we apply general contract-
law principles.” Ex parte Cox,
482 S.W.3d 112, 116
 (Tex. Crim. App. 2016) (citing
State v. Moore,
240 S.W.3d 248, 251
 (Tex. Crim. App. 2007)). “The terms of plea
agreements, being contractual in nature, are left to the parties to determine and agree
upon, and this Court will rarely disturb the terms of such agreements.”
Id.
 (citing
Ex parte Williams,
758 S.W.2d 785, 786
 (Tex. Crim. App. 1988)). We note that the
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“contract” does not become operative until the trial court announces it will be bound
by the plea bargain agreement. Ex parte Williams,
637 S.W.2d 943, 947
 (Tex. Crim.
App. 1982). Once the court makes such an announcement, the State is bound to
carry out its side of the bargain.
Id.
      Once a judge has accepted a plea bargain in open court, a defendant has a right
to enforce the State’s part of the plea bargain if it is enforceable. Ex parte Cox,
482 S.W.3d at 116
 (citing Bitterman v. State,
180 S.W.3d 139, 141
 (Tex. Crim. App.
2005)); Wright v. State,
158 S.W.3d 590, 594
 (Tex. App.—San Antonio 2005, pet.
ref’d); see Perkins v. Court of Appeals for Third Supreme Judicial Dist. of Tex., at
Austin,
738 S.W.2d 276, 283
 (Tex. Crim. App. 1987) (holding that once defendant
enters a plea of guilty in accordance with a plea bargain agreement with the
prosecutor, and the plea is accepted and the agreement is approved by the trial judge,
the defendant is entitled to specific enforcement if the agreement can be enforced or,
if not enforceable, is entitled to withdraw his plea); In re Gooch,
153 S.W.3d 690, 694
 (Tex. App.—Tyler 2005, orig. proceeding).
      We hold that specific performance, rather than withdrawal of the plea, is the
appropriate remedy in Appellant’s situation. See Perkins, 738 S.W.2d at 283–84.
In this case, the trial court could not have corrected the judgments by judgment nunc
pro tunc because the appellate records had already been filed. See TEX. R. APP. P.
23.1, 25.2(g); Perkins,
505 S.W.2d at 564
. Nonetheless, this court can modify the
trial court’s judgment. TEX. R. APP. P. 43.2; Woods v. State,
398 S.W.3d 396
, 405-
06 (Tex. App.—Texarkana 2013, pet. ref’d). This court can modify the judgment to
make the record “speak the truth” when the “matter has been called to [our] attention
from any source.” French v. State,
830 S.W.2d 607, 609
 (Tex. Crim. App. 1992);
see TEX. R. APP. P. 43.2(b). An appellate court may correct the judgment on appeal
when it has the necessary data and evidence before it for doing so. See Banks v.
State,
708 S.W.2d 460, 462
 (Tex. Crim. App. 1986). An appellate court may reform
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a judgment that has errors in sentencing if the trial court improperly stacked the
sentences. Morris v. State,
301 S.W.3d 281, 295
 (Tex. Crim. App. 2009). In open
court, the trial court accepted the plea agreement of the State and Appellant, and that
agreement included specific concurrent sentencing. Because the judgments nunc
pro tunc are void, and because the trial court abused its discretion when it ordered
consecutive sentencing after it had accepted the agreement to concurrent sentences,
we sustain in part Appellant’s sole issue on appeal and modify the judgment in Cause
No. 19080B.
                              III. This Court’s Ruling
      We modify the judgment of the trial court in Cause No. 19080B to delete the
cumulation order and to reflect that the sentence in Cause No. 19080B shall run
concurrently with the sentence in Cause No. 18365B, as agreed to in the State’s and
Appellant’s plea bargain agreement that the trial court accepted in open court. As
modified, we affirm the judgment of the trial court in Cause No. 19080B. The trial
court’s judgment in Cause No. 18365B contains no cumulation order, and we affirm
the judgment in that cause.



                                               MIKE WILLSON
                                               JUSTICE


December 30, 2016

Do not publish. See TEX. R. APP. P. 47.2(b).
Panel consists of: Wright, C.J.,
Willson, J., and Bailey, J.




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