COURT OF APPEALS 

SECOND DISTRICT OF TEXAS 

FORT WORTH

NO. 02-15-00442-CR 

RYAN GARCIA APPELLANT

V. 

THE STATE OF TEXAS STATE

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FROM CRIMINAL DISTRICT COURT NO. 2 OF TARRANT COUNTY 

TRIAL COURT NO. 1285698R 

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MEMORANDUM OPINION1

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Appellant Ryan Garcia pled guilty to one count of aggravated robbery, 

charged in two paragraphs, and the trial court convicted him and sentenced him 

to twenty years’ confinement on both offenses alleged in the count’s two 

 1See Tex. R. App. P. 47.4. 
2 

paragraphs. The Texas Court of Criminal Appeals granted Appellant an out-oftime appeal.2 In three points, Appellant contends that 

 his two aggravated robbery convictions and sentences violate article 

21.24 of the code of criminal procedure; 

 they also violate the Double Jeopardy Clause of the Fifth Amendment of 

the United States Constitution; and 

 his guilty plea was involuntary because it was predicated on his mistaken 

belief that he could receive community supervision on an aggravated 

robbery conviction. 

Because we agree with the parties that the Double Jeopardy Clause prohibits 

two convictions and two punishments for aggravated robbery occurring in a 

single incident with a single complainant, we vacate the trial court’s judgment 

convicting Appellant of and sentencing him for aggravated robbery of an elderly 

person. Because we hold that Appellant’s guilty plea was voluntary, we affirm 

the trial court’s judgment convicting him of aggravated robbery with a deadly 

weapon. 

I. Facts and Procedural History 

Appellant participated in a home-invasion robbery with three other people. 

The target of the robbery was the 84-year-old grandmother of one of his former 

 2In a companion case, Appellant was also convicted of burglary of a 

habitation with the intent to commit a felony and sentenced to twenty years. The 

Texas Court of Criminal Appeals did not grant him permission to file an out-oftime appeal in that case, and this court dismissed his appeal from that judgment 

based on his late notice of appeal. See Garcia v. State, No. 02-15-00443-CR, 

2016 WL 742010, at *1 & n.2 (Tex. App.—Fort Worth Feb. 25, 2016, pet. ref’d) 

(mem. op., not designated for publication). 
3 

classmates. Two of the robbers had guns; Appellant did not. Appellant tied the 

woman up and stood watch over her while the other men took her jewelry and 

the contents of her safe. Upon his arrest, Appellant confessed to his involvement 

in the crime. 

At the time of the robbery, Appellant was eighteen years old and had no 

prior convictions. 

In a two-paragraph indictment, Appellant was charged with a single count 

of aggravated robbery. Paragraph one alleged aggravated robbery by threat of 

an elderly person, and paragraph two alleged aggravated robbery by threat with 

a firearm, a deadly weapon. See Tex. Penal Code Ann. §§ 29.02(a)(2), 

29.03(a)(2), (3)(A) (West 2011). The paragraphs named the same complainant. 

Appellant signed a judicial confession, an application for community 

supervision, and written plea admonishments, including a waiver of a jury trial. 

At the guilty-plea hearing, after ascertaining that Appellant had no prior 

convictions, the trial court asked him, “So you are eligible for probation;[3] is that 

correct?” Appellant answered, “That’s what I understand.” The trial court then 

 3Before September 1, 1993, “community supervision” was called 

“probation” in the code of criminal procedure. See Lake v. State, No. PD-0196-

16, 2017 WL 514588, at *1 n.1 (Tex. Crim. App. Feb. 8, 2017); Yazdchi v. State, 

428 S.W.3d 831, 833 n.1 (Tex. Crim. App. 2014), cert. denied, 135 S. Ct. 

1158 (2015). We use both terms interchangeably in this opinion. See Lake, 

2017 WL 514588, at *1 n.1; Yazdchi, 428 S.W.3d at 833 n.1; see also Metts v. 

State, No. PD-1054-15, 2016 WL 6091388, at *5 n.9 (Tex. Crim. App. Oct. 19, 

2016) (using terms “regular community supervision,” “regular probation,” and 

“deferred adjudication probation”). 
4 

advised Appellant that his being eligible for probation did not mean that the trial 

court would grant it. Appellant entered an open plea of guilty to each paragraph. 

The trial court adjourned the hearing so that a presentence investigation 

(PSI) could be completed and resumed the trial upon receiving the PSI report. 

After hearing evidence and argument, the trial court found Appellant guilty of 

aggravated robbery and sentenced him to twenty years’ confinement. Almost a 

week later, the trial court signed two judgments, one for “Count One” and one for 

“Paragraph Two of Count One.” Each judgment provided a separate aggravated 

robbery conviction and twenty-year sentence, with the sentences to be served 

concurrently. Appellant now appeals from those judgments. 

II. Discussion 

A. Appellant’s Guilty Plea Was Voluntary. 

In his third point, Appellant contends that (1) the trial court erred by not 

advising him that he was ineligible for probation from the trial court and (2) his 

guilty plea was therefore involuntary because it was based upon his “false belief” 

that he could receive probation after being convicted of aggravated robbery. We 

disagree on both grounds. 

1. The Oral and Written Admonishments Led Appellant to Believe 

That He was Eligible for Some Form of Probation. 

In the “Written Plea Admonishments,” Appellant received admonishments 

on both “deferred adjudication” and “community supervision.” He was also 

admonished on pleading guilty without a bargain: 
5 

If you have plead guilty without benefit of a plea agreement, the plea 

proceeding is your trial. Should the Court find you guilty, your 

punishment can be set anywhere within the range of punishment 

prescribed by law for the offense. If you are eligible you may receive 

deferred adjudication or community supervision, but there is no 

assurance that you will. Once the Court has accepted your guilty 

plea, you cannot withdraw your plea without permission from the 

Court. [Emphasis added.] 

Appended to the “Guilty Plea Admonishments” was Appellant’s trial counsel’s 

signature acknowledging that he had “fully reviewed and explained the above 

and foregoing court admonishments, rights, and waivers, as well as the . . . 

judicial confession to [Appellant]” and that he was “satisfied that [Appellant] . . . 

ha[d] intelligently, knowingly, and voluntarily waived his rights and w[ould] enter a 

guilty plea understanding the consequences thereof.” [Emphasis added.] 

At the hearing on the guilty plea, the trial court and Appellant had the 

following exchange: 

THE COURT: And if you plead guilty, since I’m trying your case, 

then I will assess punishment. Do you 

understand? 

[APPELLANT]: Yes, sir. 

THE COURT: Now, I don’t make any . . . type of representations 

to you or your lawyer on what I will do about 

these cases. Do you understand? 

[APPELLANT]: Yes, sir. 

THE COURT: Because I, quite frankly, don’t know what I would 

do. I haven’t heard any of the facts yet. Do you 

understand that? 

[APPELLANT]: Yes, sir. 

THE COURT: But I am going to order that a Presentence 

Investigation Report be prepared. Now, do you 
6 

understand what a Presentence Investigation 

Report is? 

[APPELLANT]: Yes, sir. 

THE COURT: Basically, one of my probation officers will 

interview you, will interview the injured party, and 

will interview family members of yours to give me 

some kind of idea what type of person you are 

and why you would commit an offense . . . as 

serious as this. Do you understand? 

[APPELLANT]: Yes, sir. 

THE COURT: So it also means that since I’m going to have a 

Presentence Investigation Report prepared, I 

expect you to be truthful with the presentence 

investigator. Do you understand? Because I take 

that all into consideration too; your truthfulness, 

whether or not you are remorseful about this 

offense, or some of these things. So I’m going to 

allow you to stay on bond. I told your lawyer I 

would, but I expect you to follow the same rules 

and regulations that you’ve been following while 

you’ve been on probation [sic]. 

[APPELLANT]: Yes, sir. Thank you. 

THE COURT: If you violate this, of course, that’s going to have 

a bearing on what I do with you when it comes 

time to sentence you. Do you understand that? 

[APPELLANT]: Yes, sir. 

. . . . 

THE COURT: All right. You also signed an application for 

community supervision; is that correct?

[APPELLANT]: Yes, sir. 

THE COURT: Now, let me ask you this. Have you ever been 

before convicted of a felony in this state or in any 

other state? 
7 

[APPELLANT]: No, sir. 

THE COURT: Have you ever been in federal court for any 

reason at all? 

[APPELLANT]: No, sir. 

THE COURT: Okay. So you are eligible for probation; is that 

correct? 

[APPELLANT]: That’s what I understand. 

THE COURT: And you understand the difference between being 

eligible and actually getting probation? They’re 

two different things, right? Doesn’t necessarily 

mean just because you’re pleading, I’m going to 

give you probation. Do you understand that? 

[APPELLANT]: Yes, sir.

THE COURT: And nobody has given you that representation 

that the Judge will, because of your age, possibly 

give you probation in this; is that correct? 

[APPELLANT]: I understand.

THE COURT: All right. Because you understand that since 

these are very serious cases then, of course, I 

treat them as being very serious cases and the 

only thing I can recall about the case, and that’s 

because I have had an opportunity to read your 

statement—is that these were home invasions; is 

that correct? 

[APPELLANT]: Yes, sir. 

THE COURT: And these people that were robbed were very 

elderly people; is that correct? 

[APPELLANT]: Yes, sir. 

THE COURT: Okay. And you understand that when you’re 

dealing with elderly people that’s even more 

egregious because, you know, they could have 

had a heart attack and died and then you would 
8 

have been facing something else. Do you 

understand that? 

[APPELLANT]: Uh-huh. [Emphasis added.] 

2. The Trial Court’s Admonishments Substantially Complied with 

the Requirements of Article 26.13. 

Appellant, an American citizen, was charged with aggravated robbery with 

no sexual component and planned to plead guilty without a bargain. Of the 

admonishments listed in article 26.13, the trial court was therefore required to 

admonish him only about the range of punishment he faced. See Tex. Code 

Crim. Proc. Ann. art. 26.13(a)(1) (West Supp. 2016); Pender v. State, No. 02-13-

00400-CR, 2014 WL 1859110, at *2 (Tex. App.—Fort Worth May 8, 2014, no 

pet.) (mem. op., not designated for publication). There is no dispute that 

Appellant was admonished on the range of punishment he faced for the firstdegree felony. See Tex. Penal Code Ann. §§ 12.32 (providing range of 

punishment for first-degree felony), 29.03(b) (providing aggravated robbery is a 

first-degree felony) (West 2011). The trial court therefore substantially complied 

with article 26.13. See Tex. Code Crim. Proc. Ann. art. 26.13(c) (West Supp. 

2016); Hughes v. State, 833 S.W.2d 137, 140 (Tex. Crim. App. 1992); Lemmons 

v. State, 133 S.W.3d 751, 757 (Tex. App.—Fort Worth 2004, pet. ref’d); see also

Garza v. State, No. 14-06-00747-CR, 2008 WL 596225, at *1 (Tex. App.—

Houston [14th Dist.] Mar. 6, 2008, pet. ref’d) (mem. op., not designated for 

publication) (implying same conclusion based on correct admonishment on range 

of punishment). 
9 

3. Appellant Failed to Show that He Was Misled or Harmed by the 

Admonishments Because He Was Eligible for Deferred 

Adjudication Probation Until the Trial Court Signed the 

Judgment. 

Substantial compliance with the article 26.13 requirements is sufficient 

absent an affirmative showing by Appellant that he was unaware of the 

consequences of his plea and that he was misled or harmed. See Tex. Code 

Crim. Proc. Ann. art. 26.13(c); Pender, 2014 WL 1859110, at *2. Appellant 

contends that he wanted probation and was harmed because he was not eligible 

for it. He focuses only on the availability of “straight” probation. 

A trial court is authorized to place a defendant on one of various forms of 

probation if he satisfies the statutory requirements. See Tex. Code Crim. Proc. 

Ann. art. 42.12 (West Supp. 2016); Garza, 2008 WL 596225, at *2. “Community 

supervision probation and deferred adjudication probation are independent of 

each other in the sense that a defendant may be eligible for one form of 

probation but not the other.” Garza, 2008 WL 596225, at *2. 

It is true that the trial court could not grant “straight” or regular probation to 

Appellant after convicting him of aggravated robbery or after entering an 

affirmative deadly weapon finding. See Tex. Code Crim. Proc. Ann. art. 42.12, 

§ 3g(a)(1)(F), (2). We recognize that the oral and written plea admonishments 

could have clarified that limitation. Nevertheless, the trial court had the option to 

defer finding Appellant guilty and to place him on deferred adjudication probation. 

See id. art. 42.12, § 5(a); Cabezas v. State, 848 S.W.2d 693, 694 (Tex. Crim. 
10 

App. 1993). The trial court retained this discretion until the judgment of 

conviction was signed. See Garza, 2008 WL 596225, at *2 (holding that despite 

oral finding of guilt, trial court retained power to grant deferred adjudication for 

aggravated robbery until signing written judgment after sentencing); Cruz v. 

State, No. 2-02-148-CR, 2003 WL 21283178, at *1 (Tex. App.—Fort Worth June 

5, 2003, pet. ref’d) (mem. op., not designated for publication) (holding trial court 

could consider granting deferred adjudication until signing its written judgment 

despite stating orally that it was finding defendant guilty); cf. Moore v. State, No. 

12-15-00195-CR, 2016 WL 3950945, at *2 (Tex. App.—Tyler July 20, 2016, no 

pet.) (mem. op., not designated for publication) (holding oral finding of guilt does 

not remove trial court’s power to grant deferred adjudication); Rogers v. State, 

No. 14-09-00665-CR, 2012 WL 50609, at *2 (Tex. App.—Houston [14th Dist.] 

Jan. 10, 2012, no pet.) (mem. op., not designated for publication) (same). The 

case Appellant relies on, Ramirez v. State, 655 S.W.2d 319, 321–22 (Tex. 

App.—Corpus Christi 1983, no pet.), does not discuss the availability of deferred 

adjudication probation and is therefore inapposite. 

Thus, when Appellant pled guilty on September 24, 2012, the trial court 

had the power to consider deferred adjudication probation, and the trial court 

retained that power until it signed the judgment of conviction on December 4, 

2012. See Garza, 2008 WL 596225, at *2; Cruz, 2003 WL 21283178, at *1. 

Appellant makes no argument and points to no evidence indicating that when he 

pled guilty, he desired only regular probation, not deferred adjudication probation. 
11 

Consequently, he has failed to show that he was misled or harmed by the trial 

court’s admonishments. See Tex. Code Crim. Proc. Ann. art. 26.13(c); Garza, 

2008 WL 596225, at *2. 

We therefore hold that Appellant’s guilty plea was voluntary and overrule 

his third issue. 

B. Two Convictions and Sentences for Aggravated Robbery of One 

Complainant Placed Appellant in Double Jeopardy. 

 In his second point, Appellant contends that his two convictions and 

sentences for the same count of aggravated robbery violate his right to be free 

from double jeopardy. The State candidly agrees. 

 The allowable unit of prosecution for robbery or aggravated robbery is the 

person assaulted. Ex parte Hawkins, 6 S.W.3d 554, 560–61 (Tex. Crim. App. 

1999) (robbery); see Cooper v. State (Cooper II), 430 S.W.3d 426 (Tex. Crim. 

App. 2014) (aggravated robbery). In Cooper, the Texas Court of Criminal 

Appeals held that the trial court violated the defendant’s rights to be free of 

double jeopardy by convicting and sentencing him on two counts of aggravated 

robbery for a single encounter involving the same complainant. Cooper II, 

430 S.W.3d at 427; accord Newsome v. State, No. 02-05-00390-CR, 2007 WL 

936858, at *2 (Tex. App.—Fort Worth Mar. 29, 2007, pet. ref’d) (mem. op., not 

designated for publication) (vacating two of three convictions for aggravated 

robbery because indictment described only one incident and named only one 

complainant). One count in Cooper was based on the use or exhibition of a 
12 

deadly weapon and “intentionally, knowingly, or recklessly caus[ing] bodily 

injury,” and the other count was based on the use or exhibition of a deadly 

weapon and “intentionally or knowingly threaten[ing] or plac[ing] another in fear 

of imminent bodily injury or death.” Cooper v. State (Cooper I), 373 S.W.3d 821, 

827 (Tex. App.—Austin 2012), rev’d, 430 S.W.3d at 427. Those were alternative 

means of alleging and committing the same aggravated robbery of a single 

complainant. Cooper II, 430 S.W.3d at 428 (Keller, P.J., concurring), 

439 (Cochran, J., concurring); Burton v. State, 510 S.W.3d 232, 237 (Tex. App.—

Fort Worth 2017, no pet.). 

 Similarly, in the facts before us, the complainant’s age of “65 years . . . or 

older” and the use or exhibition of a firearm were just two alternative means of 

alleging the same aggravated robbery of the same person. See Torres v. State, 

No. 04-07-00873-CR, 2008 WL 5264869, at *4 (Tex. App.—Fort Worth Dec. 17, 

2008, pet. ref’d) (mem. op., not designated for publication); see also Cooper II, 

430 S.W.3d at 428 (Keller, P.J., concurring); 439 (Cochran, J., concurring). We 

hold that convicting and sentencing Appellant twice for the same aggravated 

robbery of one person violated his constitutional right to be free from double 

jeopardy, and we sustain his second point. 

 The proper remedy when a defendant is subject to multiple punishments 

for the same conduct is to affirm the “‘most serious” offense and to vacate the 

other. Bigon v. State, 252 S.W.3d 360, 372 (Tex. Crim. App. 2008); Ex parte 

Cavazos, 203 S.W.3d 333, 338 (Tex. Crim. App. 2006). The most serious 
13 

offense is the offense for which the greatest sentence was assessed. Cavazos, 

203 S.W.3d at 338. The trial court sentenced Appellant to twenty years’ 

confinement for each conviction. The trial court did not assess restitution, but the 

conviction with the firearm element contains an affirmative finding of a deadly 

weapon. We therefore vacate Appellant’s conviction and sentence for 

aggravated robbery by threat of an elderly person. See id.; see also Villanueva 

v. State, 227 S.W.3d 744, 749 (Tex. Crim. App. 2007). 

 Because of our disposition of this point, we do not reach Appellant’s first 

point contending that article 21.24 of the code of criminal procedure bars his two 

convictions and punishments for two paragraphs alleged in a single count. See

Tex. R. App. 47.1. 

III. Conclusion 

 To remedy the double jeopardy violation, we set aside Appellant’s 

conviction and sentence for aggravated robbery by threat of an elderly person, 

and, having held that his guilty plea was voluntary, we affirm the trial court’s 

judgment convicting Appellant of aggravated robbery by threat with a deadly 

weapon. 
14 

/s/ Mark T. Pittman 

MARK T. PITTMAN 

JUSTICE 

PANEL: SUDDERTH, KERR, and PITTMAN, JJ. 

DO NOT PUBLISH 

Tex. R. App. P. 47.2(b) 

DELIVERED: April 27, 2017