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 
2

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determined, in an unpublished opinion, that in order to preserve a complaint for 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. 
3

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.
4

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.