WILLARD JOHN FRANSEEN, Appellant v. THE STATE OF TEXAS, Appellee

Judgment Reformed and Affirmed as Reformed and Opinion Filed November 2, 1989.
 
 
S
In The
Court of Appeals
Fifth District of Texas at Dallas
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No. 05-88-01433-CR
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WILLARD JOHN FRANSEEN, Appellant
V.
THE STATE OF TEXAS, Appellee
 
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On Appeal from the Criminal District Court No. 5
Dallas County, Texas
Trial Court Cause No. F88-72585-TL
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OPINION PER CURIAM
Before Justices Stewart, Lagarde and Burnett
        Willard John Franseen appeals his conviction for felony theft of property. Punishment was assessed at three years' confinement and payment of a $300 fine.
        Appellant's attorney has filed a brief in which appellant's attorney has concluded that the appeal is wholly frivolous and without merit. The brief meets the requirements of Anders v. California, 386 U.S. 738 (1967), by presenting a professional evaluation of the record demonstrating why, in effect, there are no meritorious grounds to be advanced. See High v. State, 573 S.W.2d 807 (Tex. Crim. App. 1978); Currie v. State, 516 S.W.2d 684 (Tex. Crim. App. 1974); Gainous v. State, 436 S.W.2d 137 (Tex. Crim. App. 1969). A copy of counsel's brief has been delivered to appellant and appellant has been advised that he would be given the opportunity to examine the appellate record and that he had a right to file a pro se brief. No pro se brief has been filed. Appellant's counsel has advanced three arguable points of error: 1) the trial court's admonishments to appellant prior to his entry of a guilty plea were erroneous with regard to the range of punishment; 2) the evidence is insufficient to support the conviction; and 3) venue was improper because of a lack of proof that the offense occurred in Dallas County.
        In his first arguable point, appellant contends that the trial court's written admonishments given to appellant prior to the entry of his plea were erroneous. The written admonishments informed appellant that the applicable range of punishment was two to twenty years' confinement and payment of a fine of up to $10,000. At the time appellant was given the written admonishment form, he was charged with a third degree felony, theft, and the indictment alleged one prior conviction for enhancement. The enhancement raised the level of punishment to that of a second degree felony, for which the range of punishment is two to twenty years confinement and payment of a fine up to $10,000. See Tex. Penal Code Ann. §§ 12.42(a), 12.33 (Vernon 1974). Thus, the trial court's admonishments were correct for the offense for which appellant was originally charged. However, the State waived the enhancement paragraph of the indictment. Thus, the applicable range of punishment was two to ten years confinement and payment of a fine up to $5,000.
        Prior to accepting a plea of guilty, the trial court is required to admonish the defendant of the range of punishment attached to the offense. Tex. Code Crim. Proc. Ann. art. 26.13(a)(1) (Vernon Pamph. Supp. 1989). Article 26.13 provides that substantial compliance with the admonishment requirements is sufficient, unless the defendant affirmatively shows that he was not aware of the consequences of his plea and that he was misled or harmed by the admonishment of the court. Tex. Code Crim. Proc. Ann. art. 26.13(c). In Robinson v. State, 739 S.W.2d 795, 801 (Tex. Crim. App. 1987), the court of criminal appeals held that the trial court had substantially complied with article 26.13 when the court informed the defendant that the applicable range of punishment was two to ten years when the range was, in fact, two to twelve years, in light of the fact that the actual punishment assessed was six years, well within both the actual and stated maximum. The court noted further that the defendant had failed to show that he had been mislead or harmed. In Eatmon v. State, 768 S.W.2d 310, 311-12 (Tex. Crim. App. 1989), the court of criminal appeals found substantial compliance and no harm in a five year sentence when the trial court erroneously admonished that the range of punishment was two to ten years and up to a $5,000 fine, when in actuality the range of punishment was from two to twenty years and a fine not to exceed $10,000.
        As in Robinson and Eatmon, the punishment of three years' confinement and payment of a $300 fine was well below the maximum punishment recited by the court and the true maximum punishment. Further, we have examined the record and find nothing to show that appellant was misled or harmed by the admonishments. See Eatmon, 768 S.W.2d at 312; Robinson, 739 S.W.2d at 801. We overrule appellant's first arguable point.
        In his second arguable point of error, appellant argues that the evidence is insufficient because the written judicial confession executed by appellant was not admitted into evidence, although it was tendered at the hearing pursuant to the plea of guilty. Although the written judicial confession was not formally admitted into evidence, the record indicates that, without objection by appellant, the trial court and the parties treated the confession as having been admitted into evidence. Thus, the confession may be considered in support of the judgment as if it had been formally admitted. See Killion v. State, 503 S.W.2d 765, 766 (Tex. Crim. App. 1973); see also James v. State, 640 S.W.2d 910, 911 (Tex. Crim. App. 1982) (Onion, J., concurring) (opinion on refusal of petition for discretionary review). FN:1
        In his written judicial confession, entered in open court, appellant admitted that he had committed the offense exactly as alleged in the indictment. We hold that the evidence is sufficient to meet the requirements of article 1.15 of the Texas Code of Criminal Procedure and to support the judgment. See Prochaska v. State, 587 S.W.2d 726, 729 (Tex. Crim. App. [Panel Op.] 1979); Tex. Code Crim. Proc. Ann. art. 1.15 (Vernon 1977). We overrule appellant's second arguable point.
        Appellant's third arguable point of error concerns appellant's motion with regard to improper venue. At trial, appellant filed a motion challenging venue, alleging that there was no evidence that appellant had engaged in any criminal activity in Dallas County, Texas, because appellant was apprehended in the state of California "while in proximity to" the automobile he allegedly stole. We note that appellant's written judicial confession states in pertinent part, "I confess that I did unlawfully commit the said offense in Dallas County, Texas." In a theft case, venue is proper in the county where the property is stolen. Tex. Code Crim. Proc. Ann. art. 13.08 (Vernon 1977). This judicial confession is sufficient to establish venue in Dallas County, Texas. See Bender v. State, 739 S.W.2d 409, 412 (Tex. App. -- Houston [14th Dist.] 1987), pet. ref'd per curiam, 761 S.W.2d 378 (Tex. Crim. App. 1988) (stipulation of evidence indicating venue in Harris County, Texas supports conviction on plea of nolo contendere). We overrule appellant's third arguable point.
        The State has called to this Court's attention an error in the written judgment. The judgment reflects that appellant pled true to the indictment's enhancement paragraph and that the trial court found the enhancement paragraph true. The record reflects, however, that the State dismissed this paragraph of the indictment. The State requests that we reform the judgment to reflect that there was no finding of true to the enhancement paragraph. When this Court has before it the necessary data and evidence for reformation, the judgment and sentence may be reformed on appeal to correctly reflect the trial court's actions. See Banks v. State, 708 S.W.2d 460, 462 (Tex. Crim. App. 1986); Rivera v. State, 716 S.W.2d 68, 71 (Tex. App. -- Dallas 1986, pet. ref'd). This Court has held that the written judgment must be viewed in light of the trial judge's statements on the record. Rivera, 716 S.W.2d at 71. In this case, the State on the record abandoned the enhancement paragraph and the court asked if the State was dismissing that paragraph. The State replied that it was. In accepting the guilty plea, the trial court assessed appellant's punishment at three years' confinement and fine of $300 with no mention of the enhancement paragraph. We conclude that the trial court did not, in fact, make a finding of true to the enhancement paragraph and that the judgment is in error in so reciting. Accordingly, we reform the judgment to reflect that there was no enhancement paragraph and, consequently, no finding of true. See Tex. R. App. P. 80(b)(2).
        We have carefully reviewed the record and counsel's brief and agree that the appeal is wholly frivolous and without merit.
        The judgment, as modified, is affirmed.
 
                                                          PER CURIAM
 
Do Not Publish
Tex. R. App. P. 90
 
FN:1 In James, Presiding Judge Onion noted that the prosecutor would have been well advised to have secured a ruling on his offer of evidence before rushing to "rest" and seeking to determine if there were objections to such action by the State. James, 640 S.W.2d at 911 n.2. The prosecutor in the instant case would be wise to heed Judge Onion's adjuration.
File Date[11-02-89]
File Name[881433F]