## COURT OF APPEALS SECOND DISTRICT OF TEXAS FORT WORTH NO. 02-15-00442-CR

RYAN GARCIA APPELLANT
V. THE STATE OF TEXAS STATE

---------- FROM CRIMINAL DISTRICT COUR T NO. 2 OF TARRANT COUNTY TRIAL COURT NO. 1285698R

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### MEMORANDUM OPINION 1

---------- Appellant Ryan Garcia pled guilty to one count of aggravated robbery, charged in two paragraphs, and the tria l court convicted hi m and sentenced him to twenty years’ confin ement on both offenses alle ged in the count’s two

1 See Tex. R. App. P. 47.4.2 paragraphs. The Texas Court of Criminal Appeals granted Appellant an out-oftime appeal. 2 In three points, Ap pellant contends that

 his two aggravated ro bbery convictions and se ntences violate article 21.24 of the code of criminal procedure;

 they also violate the Double Jeopar dy Clause of the Fifth Amendment of the United States Constitution; and

 his guilty plea was involuntary becaus e it was predicated on his mistaken belief that he could receive community supervision on an aggravated robbery conviction. Because we agree with the pa rties that the Double Je opardy Clause prohibits two convictions and two punishments for aggravated robbery occurring in a single incident with a sing le complainant, we vacate the trial court’s judgment convicting Appellant of and sentencing hi m for aggravated robbery of an elderly person. Because we hold t hat Appellant’s guilty plea was voluntary, we affirm the trial court’s judgment convicting him of aggravat ed robbery wi th 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

2 In a companion case, Appellant was also convicted of burglary of a habitation with the intent to commit a felony and senten ced to twenty years. The Texas Court of Criminal App eals did not grant him permis sion to file an out-oftime appeal in that case, a nd this court dismissed his ap peal 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. Up on his arrest, Appellant co nfessed to his involvement in the crime. At the time of the robbery, Appell ant was eighteen years old and had no prior convictions. In a two-paragraph indictment, Appella nt was charged with a single count of aggravated robbery. Para graph one alleged aggravated robbery by threat of an elderly person, and paragr aph two alleged aggravated robbery by threat with a firearm, a deadly weapon. See Tex. Penal Code An n. §§ 29.02(a)(2), 29.03(a)(2), (3)(A) (West 2 011). The paragraphs na med the same complainant. Appellant signed a judici al confession, an application for community supervision, and written plea ad monishments, including a waiver of a jury trial. At the guilty-plea hearing, after ascert aining 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

3 Before September 1, 1993, “com munity supervision” was called “probation” in the code ofcriminal procedure. See Lake v. State , No. PD-0196- 16, 2017 WL 514588, at *1 n.1 (T ex. Crim. App. Feb. 8, 2017); Yazdchi v. State , 428 S.W.3d 831, 833 n.1 (T ex. Crim. App. 2014), cert. denied , 135 S. Ct. 1158 (2015). We use bot h 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 (T ex. Crim. App. Oct. 19, 2016) (using terms “regular community su pervision,” “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 present ence 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 an d sentenced him to twenty ye ars’ confinement. Almost a week later, the trial court signed two ju dgments, one for “Count One” and one for “Paragraph Two of Count One.” Each ju dgment provided a separate aggravated robbery conviction and twenty-year senten ce, 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 pr obation from the trial court and (2) his guilty plea was therefore invo luntary because it was base d upon his “false belief” that he could receive probat ion after being convicted of aggravated robbery. We disagree on both grounds. 1. The Oral and Written Admoni shments Led Appellant to Believe That He was Eligible for Some Form of Probation. In the “Written Plea Ad monishments,” Appellant received admonishments on both “deferred adjudication” and “com munity supervision.” He was also admonished on pleading gu ilty without a bargain:5 If you have plead guilty without benefi t of a plea agreement, the plea proceeding is your trial. Should the Court find you guilty, your punishment can be set anywhere wi thin the range of punishment prescribed by law for the offense. If you are eligible you may receive deferred adjudication or communit y 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 Pl ea Admonishments” was Ap pellant’s trial counsel’s signature acknowledging that he had “f ully reviewed and explained the above and foregoing court admonishments, righ ts, and waivers, as well as the . . . judicial confession to [Appellant]” and th at he was “satisfied that [Appellant] . . . ha[d] intelligently, knowingly, and voluntar ily waived his rights and w[ould] enter a guilty plea understanding the co nsequences thereof .” [Emphasis added.] At the hearing on the guilty plea, th e trial court and Appellant had the following exchange: THE COURT: And if you plead guil ty, since I’m trying your case, then I will assess punishment. Do you understand? [APPELLANT]: Yes, sir. THE COURT: Now, I don’t make an y . . . 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 fran kly, don’t knowwhat I would do. I haven’t heard any ofthe 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 you6 understand what a Pr esentence Investigation Report is? [APPELLANT]: Yes, sir. THE COURT: Basically, one of my probation officers will interview you, w ill interview the injured party, and will interview family member s 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 truthf ul with the presentence investigator. Do you unde rstand? 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 sign ed an application for community supervision; is that correct? [APPELLANT]: Yes, sir. THE COURT: Now, let me ask yo u this. Have you ever been before convicted of a felonyin this state or in any other state?7 [APPELLANT]: No, sir. THE COURT: Have you ever bee n 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, righ t? 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 yo u that representation that the Judge will, becaus e 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 ab out 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 th at were robbed were very elderly people; is that correct? [APPELLANT]: Yes, sir. THE COURT: Okay. And you un derstand 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 would8 have been facing something else. Do you understand that? [APPELLANT]: Uh-huh. [Emphasis added.] 2. The Trial Court’s Admonishment s Substantially Complied with the Requirements ofArticle 26.13. Appellant, an American citizen, was ch arged with aggrav ated robbery with no sexual component and pl anned to plead guilty wi thout a bargain. Of the admonishments listed in arti cle 26.13, the trial court was therefore required to admonish him only about the rang e 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 public ation). There is no dispute that Appellant was admonished on the range of punishmenthe 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 tr ial 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 (T ex. 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, pe t. ref’d) (mem. op., not designated for publication) (implying same conclusion based on corre ct 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 articl e 26.13 requirements is sufficient absent an affirmative sh owing by Appellant that he was unaware of the consequences of his plea and t hat 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 pr obation and was harmed bec ause he was not eligible for it. He focuses only on the av ailability of “straight” probation. A trial court is authorized to place a defendant on one of various forms of probation if he satisfies th e statutory re quirements. See Tex. Code Crim. Proc. Ann. art. 42.12 (West Supp. 2016); Garza , 2008 WL 596225, at *2. “Community supervision probation and deferred adjudi cation probation are independent of each other in the sense that a defend ant 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 gr ant “straight” or regular probation to Appellant after convicting him of aggra vated robbery or after entering an affirmative deadly weapon finding. See Tex. Code Crim. Pr oc. Ann. art. 42.12, § 3g(a)(1)(F), (2). We recognize that the oral and writte n plea admonishments could have clarified that limit ation. Nevertheless, the tr ial 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 unt il 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 defe rred adjudication for aggravated robbery until signing wri tten judgment afte r sentencing); Cruz v. State , No. 2-02-148-CR, 2003 WL 21283178, at *1 (T ex. App.—Fort Worth June 5, 2003, pet. ref’d) (mem. op. , not designated for publicat ion) (holding trial court could consider granting deferred adjudica tion 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 39 50945, 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 adjudi cation probation, and the trial court retained that power until it signed the judg ment of conviction on December 4,
2012. See Garza , 2008 WL 596225, at *2; Cruz, 2003 WL 21283178, at *1. Appellant makes no argu ment and points to no evid ence indicating that when he pled guilty, he desired only regular probatio n, not deferred adjudic ation 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 gu ilty plea was voluntary and overrule his third issue. B. Two Convictions and Sentences for Aggravated Robbery of One Complainant Placed Appella nt in Double Jeopardy. In his second point, Ap pellant contends that hi s 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 pros ecution 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 tria l court violated the defendan t’s rights to be free of double jeopardy by convicting and senten cing him on two counts of aggravated robbery for a single encounter in volving 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 Ma r. 29, 2007, pet. ref’d) (mem. op., not designated for publication) (vacating two of three convictions for aggravated robbery because indictment described only one inci dent and named only one complainant). One count in Coope r was based on the use or exhibition of a12 deadly weapon and “intentionally, knowin gly, 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. Stat e ( 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 comm itting the same aggravat ed 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 fire arm were just two al ternative means of alleging the same aggravated r obbery 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., concurri ng); 439 (Cochran, J., concurring). We hold that convicting and sent encing Appellant twice fo r the same aggravated robbery of one person violated his constitutional right to be free from double jeopardy, and we sust ain 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 serious13 offense is the offense for which th e greatest sentence was assessed. Cavazos , 203 S.W.3d at 338. The trial court sentenced Appe llant to twenty years’ confinement for each convicti on. The trial court did not assess restitution, but the conviction with the firearm element contai ns an affirmative finding of a deadly weapon. We therefore vacate Appe llant’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 (T ex. Crim. App. 2007). Because of our disposition of this po int, we do not reac h Appellant’s first point contending that article 21.24 of the code of crimin al procedure bars his two convictions and punishment s for two paragraphs all eged in a single count. See Tex. R. App. 47.1. III. Conclusion To remedy the double jeopardy vi olation, we set aside Appellant’s conviction and sentence for ag gravated robbery by threatof an elderly person, and, having held that his gu ilty plea was voluntary, we affirm the trial court’s judgment convicting Appellant of aggravat ed 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