Guerrero-Acosta v. State

• Decision Date: 08 November 2018
• Docket Number: NUMBER 13-17-00560-CR
• Parties: JORGE ENRIQUE GUERRERO-ACOSTA, Appellant, v. THE STATE OF TEXAS, Appellee.
• Court: Texas Court of Appeals

JORGE ENRIQUE GUERRERO-ACOSTA, Appellant, v. THE STATE OF TEXAS, Appellee.

NUMBER 13-17-00560-CR

COURT OF APPEALS THIRTEENTH DISTRICT OF TEXAS CORPUS CHRISTI - EDINBURG

November 8, 2018

On appeal from the 277th District Court of Williamson County, Texas.

MEMORANDUM OPINION¹

Before Justices Contreras, Longoria, and Hinojosa

Memorandum Opinion by Justice Hinojosa Appellant Jorge Enrique Guerrero-Acosta was convicted of intoxication assault and failing to stop and render aid, both third-degree felonies. See TEX. PENAL CODE ANN. § 49.07 (West, Westlaw through 2017 1st C.S.); TEX. TRANSP. CODE ANN. § 550.021(c)(1)(B) (West, Westlaw through 2017 1st C.S.). Appellant pleaded guilty to both offenses, and the trial court sentenced appellant to concurrent eight-year prison terms. By two issues, which we treat as one, appellant maintains that the State failed to properly amend the failing-to-stop-and-render-aid count in the indictment to allege "serious bodily injury" and that, as a result, appellant's sentence exceeded the statutory range of punishment. We reverse and remand.

I. BACKGROUND

Appellant was driving a vehicle that collided with a motorcycle operated by Stephen Moore, who suffered extensive injuries. Appellant left the scene of the accident and was later arrested. A grand jury returned a three-count indictment charging appellant with (1) intoxication assault, (2) aggravated assault with a deadly weapon, and (3) failing to stop and render aid. With respect to count three, the indictment alleged in relevant part that appellant "was the operator of a vehicle involved in an accident resulting in injury to Stephen Moore[.]" See TEX. TRANSP. CODE ANN. § 550.021(c) (classifying the degree of the offense based on the nature of the resulting injury: death, second-degree felony; serious bodily injury, third-degree felony; in the absence of death or serious bodily injury, up to five years' imprisonment or one year in the county jail).

In exchange for appellant's plea of guilty to counts one and three, the State agreed to dismiss count two—aggravated assault with a deadly weapon. At the plea hearing, after appellant pleaded guilty to intoxication assault, the following exchange occurred:

Trial Court: And then on the other case, [I could sentence you] anywhere up to a year in county jail, up to five years in prison. You understand that?

Appellant: Yes, ma'am.

Trial Court: Okay.

Prosecutor 1: Your Honor, it's my understanding that because it involves serious bodily injury with the failure to stop and render aid that it's a third degree.

Defense Counsel: It comes—it comes under a special hybrid.

Trial Court: It is, but it's that special—it's third degree for enhancement purposes, I thought, but it's a—isn't it a—Let's relook at that in the code. I thought it was—

Prosecutor 2: I think that if it's just bodily injury, it's the hybrid . . . but if it's serious bodily injury . . . it's a true third degree.

Trial Court: All right. Then we need to—we need to change this.

. . . .

Let's go back and talk about Count Three. So Count Three is fail to stop and render aid causing serious bodily injury, which actually makes this—So ignore what I told you before about that hybrid special punishment, and that actually makes this a third degree felony—All right—which is also punishable by anywhere from two to 10 years in prison. You understand that?

Appellant: Yes, ma'am.

Trial Court: All right. And so I'm going to ask you some of the same questions. You understand that you're pleading open to me asking me to decide what's the appropriate punishment in this case. Is that correct?

Appellant: Yes, ma'am.

Trial Court: All right. And you understand that the same consequences are in place in terms of the citizenship and all those kinds of things—

Appellant: Yes, ma'am.

Trial Court: —and the deportation? All right. Now I'm going to read to you from the indictment that says on or about the 8th day of February, 2016, in Williamson County, Texas, that you were the operator of a vehicle involved in an accident resulting in injury to Stephen Moore and intentionally failed to provide Stephen Moore, a person injured in the accident and apparently needing treatment or requesting transportation, reasonable assistance, including transporting or making arrangements for transporting the person to a physician or hospital for medical treatment. See, this is indicted as—Oh, it's indicted right as a third degree.

Defense Counsel: Does it say "serious bodily injury"?

Trial Court: It's indicted as a third degree. It doesn't say "serious bodily injury," but it says, "resulting in injury." But I don't know—It does say—It does have—It does have "third degree" in the heading, which is our default, but it doesn't say "serious bodily injury" in the indictment. Is this the same—we have the same person in each—Is it the same victim?

Prosecutor 1: It's the same . . . victim in each case, Your Honor.

Trial Court: All right.

Defense Counsel: If the State wants to amend it, we would have no objection. Whatever needs to be done to satisfy [the State] is fine.

Trial Court: All right. So Count One has serious bodily injury, so it's listed in there. So do we want to amend—Do you want to move to amend the indictment to add "serious bodily injury"? Because it just says, "resulting in injury," which is probably where you got confused, [defense counsel] on the code, I think. So you want me to amend it to say "serious bodily injury"?

Prosecutor 1: Yes, I do, Your Honor.

Trial Court: All right. And you have no objection?

Defense Counsel: No, ma'am.

Trial Court: All right. All right. So it's now going to read you were the operator of a vehicle involved in an accident resulting in serious bodily injury to Stephen Moore and that you intentionally failed to provide him, who obviously needed treatment resulting in transportation, you did not provide that treatment, correct?

Appellant: Yes, ma'am.

Trial Court: All right. And so to that offense, how do you plead, guilty or not guilty?

Appellant: Guilty.

A written amendment to the indictment does not appear in the record. The trial court found appellant guilty on counts one and three and dismissed count two. Following a punishment hearing, the trial court sentenced appellant to concurrent eight-year prison terms. This appeal followed.

II. DISCUSSION

Appellant argues that the State's effort to amend the indictment to allege "serious bodily injury" was ineffective. Appellant contends that the oral motion to amend and the trial court's granting thereof merely authorized the State to amend the indictment, but the State failed to file an amended indictment. As a result, appellant maintains that his sentence of eight years exceeded the statutory sentencing range for failing to stop and render aid in an accident resulting in injury—but not serious bodily injury.

The State responds that appellant waived his right to appeal and did not preserve error. In the alternative, the State contends that the indictment was effectively amended when the trial court read the amended language into the record. We first address the State's waiver and preservation arguments.

A. Waiver of Right to Appeal

Appellant signed a document titled "Waivers, Consent, Judicial Confession and Plea Agreement," which provided that appellant waived, among other rights, "any and all rights to appeal." However, the trial court informed appellant at the plea and punishment hearings that appellant has the right to appeal his sentence. In addition, the trial court's certification of appellant's right of appeal provides that appellant has the right of appeal.

Texas Rule of Appellate Procedure 25.2 governs the perfection of appeals in criminal cases and requires that the trial court certify an appellant's right to appeal. See TEX. R. APP. P. 25.2; Grice v. State, 162 S.W.3d 641, 645 (Tex. App.—Houston [14th Dist.] 2005, pet. ref'd). A defendant who accepts punishment under a plea agreement has a limited right of appeal under rule 25.2(a)(2); he may only appeal pretrial rulings on written motions or "after getting the trial court's permission to appeal." TEX. R. APP. P. 25.2(a)(2); Ex parte Cox, 482 S.W.3d 112, 117 (Tex. Crim. App. 2016) (a defendant "waives the right to appeal" when he accepts a plea bargain). There are two basic types of plea bargains—sentence bargains and charge bargains. Shankle v. State, 119 S.W.3d 808, 813 (Tex. Crim. App. 2003). Sentence-bargaining involves a situation in which a defendant agrees to enter a plea of guilty in exchange for the State's binding or non-binding recommendation to the trial court regarding punishment. Id. Charge- bargaining involves questions of whether a defendant "will plead guilty to the offense that has been alleged or to a lesser or related offenses, and of whether the prosecutor will dismiss, or refrain from bringing, other charges." Id. Rule 25.2(a)(2) applies to charge-bargain cases. Kennedy v. State, 297 S.W.3d 338, 340-42 (Tex. Crim. App. 2009).

Appellant and the State entered into a charge bargain, whereby appellant agreed to plead guilty to two counts, and the State agreed to dismiss a third count. Nevertheless, the Texas Court of Criminal Appeals has consistently held that a trial court's permission to appeal controls over a defendant's previous waiver of appeal contained in preprinted plea papers. Ex parte De Leon, 400 S.W.3d 83, 90 (Tex. Crim. App. 2013); Willis v. State, 121 S.W.3d 400, 403 (Tex. Crim. App. 2003). Although appellant entered into a charge bargain with the State and signed plea paperwork containing a waiver of his right to appeal, the record reflects that the trial court expressly granted appellant permission to appeal. See TEX. R. APP. P. 25.2(a)(2)(B). Therefore, we conclude that appellant has not waived his right to appeal.

B. Preservation

Relying on article 1.14(b) of the Texas Code of Criminal Procedure, the State argues that appellant did not preserve error regarding the amending of the indictment. See TEX. CODE CRIM. PROC. ANN. art....