Arthur M. Flores v. The State of Texas--Appeal from 175th Judicial District Court of Bexar County

No. 04-00-00156-CR
Arthur M. FLORES,
Appellant
v.
The STATE of Texas,
Appellee
From the 175th Judicial District Court, Bexar County, Texas
Trial Court No. 1999CR3131A
Honorable Mary Rom n, Judge Presiding

Opinion by: Catherine Stone, Justice

Sitting: Tom Rickhoff, Justice

Catherine Stone, Justice

Sarah B. Duncan, Justice

Delivered and Filed: January 10, 2001

AFFIRMED AS REFORMED

Arthur M. Flores ("Flores") pled guilty to engaging in an organized criminal act. Flores also pled true to two prior felony convictions. In accordance with the terms of his plea agreement, Flores was sentenced to ten years imprisonment. In his sole point of error, Flores contends that his plea was rendered involuntary by ineffective assistance of counsel.

"[T]he two part test announced in Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984), applies to challenges to guilty pleas based on ineffective assistance of counsel." Ex parte Pool, 738 S.W.2d 285, 286 (Tex. Crim. App.1987). The voluntariness of a plea under this test depends on: "(1) whether counsel's advice was within the range of competence demanded of attorneys in criminal cases and if not, (2) whether there is a reasonable probability that, but for counsel's errors, [the defendant] would not have pleaded guilty and would have insisted on going to trial." Ex parte Morrow, 952 S.W.2d 530, 536 (Tex. Crim. App.1997).

Flores contends his plea was involuntary because his trial counsel was ineffective in failing to move to amend his indictment. Flores asserts that his trial counsel should have moved to amend the indictment because one of the prior convictions alleged for enhancement purposes could not be used to sentence him as a habitual offender. Because Flores is challenging the voluntariness of his plea, we have jurisdiction to consider this appeal. See Heiligmann v. State, 980 S.W.2d 713, 714 (Tex. App.--San Antonio 1998, no pet.).

The State notes that during the hearing, the trial court was made aware that the prior convictions were to be used to enhance Flores's punishment as a repeat offender, not a habitual offender. (1)

This understanding regarding the use of the prior convictions is consistent with Flores's plea agreement in which he agreed he had been "previously convicted of one or more felonies for enhancement under 12.42 P.C." In addition, the trial court admonished Flores, both verbally and in writing, that the range of punishment for his offense was two years to twenty years, with a possible fine up to $10,000. (2) The written admonishments note that the offense was "organized crime - burg. of bldg.," and in the space for the trial court to circle whether "repeater" or "habitual" applied, the trial court circled repeater. The range of punishment provided in the trial court's admonishments was only applicable if Flores was punished as a repeat offender. See Tex. Pen. Code Ann. 12.42, 71.02 (Vernon Supp. 2000). If Flores was punished as a habitual offender, the range of punishment would have been not less than 25 years and not more than 99 years. See Tex. Pen. Code Ann. 12.42, 71.02 (Vernon Supp. 2000). It is apparent from the clerk's record and the reporter's record of the plea proceeding that the trial court intended to sentence Flores as a repeat offender, not a habitual offender. If the trial court's judgment had properly reflected this intent, no basis would exist for Flores's voluntariness complaint. The proper remedy in this case is for this court to reform the trial court's judgment to reflect that Flores was sentenced as a repeat offender, not a habitual offender. Once the judgment is reformed, the basis for Flores's complaint is eliminated, and we can affirm the judgment as reformed.

Conclusion

The trial court's judgment is reformed to reflect that Flores was sentenced as a repeat offender, not a habitual offender. As reformed, the trial court's judgment is affirmed.

Catherine Stone, Justice

DO NOT PUBLISH

1. The following exchange occurred at the beginning of the hearing regarding the allegations of the prior convictions:

THE COURT: He's indicted as a habitual?

MR. CLARK: Actually, a repeat offender, Your Honor.

MR. WARRICK: The indictment is habitual. I believe we'll probably have to -

MR. CLARK: Acutally, it is not. We just alleged two separate incidents where he has been to the pen, so we've got that leniency.

THE COURT: I see. Okay.

2. The trial court stated at the hearing:

Your jury waiver is approved. Mr. Flores, you are charged by indictment with the offense of organized crime, burglary of a building. The State is also alleging that once before you have been convicted of a felony and therefore the punishment range is not less than 2 years, not more than 20 years confinement and can include a possible fine not to exceed $10,000. Do you understand the full range of punishment?