## In the Court of Appeals Second Appellate District of Texas at Fort Worth

___________________________ No. 02

- 22

- 00143

- CR

_

__________________________

On Appeal from 396th District Court Tarrant County, Texas Trial Court No. 1589127D

B efore Sudderth, C.J.; Womack and Wallach, JJ. M emorandum Opinion by Chief Justice Sudderth 

### I SAAC 

### A NTHONY 

### C ASTRELLON 

### , Appellant

V


### . T HE 

### S TATE OF 

### T EXAS2 MEMORANDU M OPINION Appella nt Isa ac Anthony Castr ellon appeals his sentence s of ten years ’ impri sonment 1 for the offe ns e s of aggravated assault causing ser ious bodi ly injury , aggravated assault with a deadly weapon , and accident involving ser ious bodily injury

. We will af firm.
I. Background In J une 2019, Castrellon was indicted for (1) second

- degree felony aggra vate d
assault c au sing serious bodily in jury (Count 1 ) , (2) second

- degree felony aggravated assault with a deadly weapon (C ount 2) , and (3) th ird

- degree f elony ac cident involving
serio us bodily inj ury (Count 3)

. The indictmen t also contained a separate deadly

weapon

- fi nding

- notice pa ragrap h. 2 In July 2021, t he State offered Ca strellon a p lea bargain whereby he would
receive six years ’ incarcerat ion in exchange for a guilty plea. How ever, Castrellon rejected th e State ’ s offer

. I n January 2022, after b eing admonished by the trial court, Castrellon ple aded guilty 3 to all three offenses and “ true ” to th e indictment ’ s deadly weapon allegation

.

1 As detailed below, t hese sentences are to run concur rently.

2 This paragraph indicate s that a “ DEADLY WEAPON, NAMELY: A MOTOR V EHICLE ” was used du ring t he commission of or immediate flight from t he offen ses.

3 Castre llon entered an “ open plea ”

— that is, a guilty plea without the benefit of a plea agreement

.3 Although Count 3 is a third

- d egree felony with a p uni shment range of two to ten
ye ars and a fine not to exceed $10,000, t he written admonis hment form listed the punishm en t range for all t hree offenses as two t o 20 years in pris on and a fine not to exceed $10,000 (the punishm ent range applicable to second

- degree felon ies)

. Nevertheless, C astrellon signed the admonishment form, which contained a writte n waiv er includin g a cknowledg ment s tha t , among other thin gs, Castrellon f ully
understood the trial court ’ s admonishments and had n o questions ; he was aware of the consequences of his plea; and his plea was knowingly , fre ely, and voluntarily
entered. T he tr i al court a cknowl ed ged that the adm oni shments ha d been given, that
Castrellon ’ s plea was intelligently, fre ely, and voluntarily entered, and that the court

was acc epting Castrellon ’ s gu ilty plea. In July 2022 , the trial court held a sentencing hea ring. After recei ving the
presentence investigation report an d hearing from Castrellon ’ s three wi tnesses, the
trial court sentenced Castre llon to ten years ’ imprisonment on each count , with the

sen tences to run con currently. This appeal follo wed.
II. Discussion On appeal , Castre l lon raises two points. First , he asserts that his guilty plea was involuntary because he was admonished for a second

- degree felony pu nis hment range
f

or all three offe nses but the third cou nt with which he was cha rged

— accident
inv olving serious b odil y inj u ry

— is actually a third

- degree felon y . Second , he conten ds
that the deadly weapon finding s in the trial court ’ s judgments should be stricken4 because t hey are no t suffi ciently specifi c and do not match the allega tion s in the
indictment

. A. Point One : The T rial Court ’ s Incorre ct Admonishment D id Not Render Castrellon ’ s Guilt y Plea Involuntary I n his first point, Cas trellon argues that the trial court ’ s fa ilure to properly
admo nish him of the correct punishment range for Cou nt 3 rendered his decision to

ente r a guilty plea unknowing and involuntary. This argument lacks merit.
Under A rticle 26.13 of the Texas Code of Criminal Procedure , a tria l court
must admonish a defen dant of the punishment range attached to the offense before accepting the defendant ’ s gui lty plea. T ex. Code Crim. Proc. Ann. art. 26.13 (a)(1)

. The purpose of A rticle 26.13 is to ensure that only constitution ally valid pleas

— those
that are both kn owing and voluntary

— are entered by defendants and accepted by trial

courts. Meyers v. State , 623 S.W.2d 397 , 402

– 03 (Tex. Crim. App. [Panel Op.] 1981) (citing Brady v. United States , 397 U.S. 742, 90 S. Ct. 1463 (197 0) ). An admonish ment that substa ntiall y complies with A rticle 26.13 is sufficient and establishes a prima facie
case that the defendan t’ s plea was knowing and voluntary. See Tex. Code Crim. Proc. Ann. art. 26.13(c); Martinez v. State , 981 S.W.2d 195, 197 (Tex. Crim. App. 1998).
The Court of C riminal Appeals has instructed us that when the record reflects that the trial court incorrectly admonished a defendant regarding the punishment range but assessed punishment within both the actual and misstated range s, the

a dmonishme nt substantial ly compl i es with A rticle 26.13

. Martinez , 981 S.W.2d at 19 7;5 see Lemmons v. State , 133 S.W.3d 751, 757 (Tex. App.

— Fort Worth 2004, pet. ref ’ d).
The burden then shifts to t he defendant to affirmatively show that he was not a ware of the conse quences of his plea and th at he was misled or harmed, such that the plea

was r endered involuntary. See Martinez , 981 S.W.2d at 197 (interpreting Tex. Code Crim. Proc. Ann. art. 26.13(c)) ; Lemmons , 133 S.W.3d at 7 57

. In other words, once substantial compl iance is shown, “[a] defen dant may still raise the claim that his plea

was not v oluntary; however, the burden shifts t o the defendant to demonstrate that he did not fully understand the c onsequences of his plea such that he suffered harm.” Martinez , 981 S .W.2d at 197. Here, the tr ial court substantially complied with A rticle 26.13(a)(1) because it
assessed Castrellon ’ s p unishment within the actual and misstated ranges. 4
See Martinez , 981 S.W.2d at 197. Thus , to preva il on his first point , Castrellon must affirmatively show that , despite the trial court ’ s substantial compliance, he w as not aware of the consequences of hi s plea as it related to the correct punishment range for
h is offenses and was misled or harmed by the court ’ s admonishmen t. See Tex. Code
Crim. Proc. Ann. art. 26. 13(c); Lemmons , 133 S.W.3d at 759. Cast rellon h as not met this burden.

4 As not ed abo ve, t he admonishment form incorrectly stated th e pu nishmen t ran ge as two to 20 years ’ i mprisonment and a fi ne not to ex ceed $ 10,000

— the range for second de gree felonies

— whe reas the actual punishment range f or Count 3

— a third degree felon y
— was two to ten years ’ impri sonment and a fine not to exceed $10,000

. See Tex. Pe nal Code Ann. §§ 12.33

– 12 .34. Thus, the trial c ourt ’ s sentence of ten y ear s ’ imprisonment falls within both the actual and misstated ran ges.6 In Martinez , the Cou rt of Criminal Appeals hel d that because “ [t] he only support in th e record for appellant ’ s contention that his plea was involuntary [was] the
incorrect admonish ment form ,” the appellant had not sustained his burden to show the involuntariness of his plea

. Martinez , 981 S.W.2d at 197. The same is true here.
L

ike the app ellant in Martinez , Castrellon point s to no thing i n the app ellat e r ecord
except the incorrect admonishment form to indicate that he was actually harmed or misled in making his determination to enter a guilty plea

. See id. Instead, he relies solely on the erro r in the admonishment form to show th at h is p lea w as involunta ry . A ccordin gly , Castrellon has not satis fied his burden. See id.
We overrule Castrellon ’ s first point.
B. Point Two : The Dea dly Weapon Finding s in the Judgments Need Not Be Stricken In his second point, Castrello n argues that the deadly weapon findings in the
trial court ’ s judgments should be stricken because they are not sufficiently specific and do not accurately refl ect the deadly weapon all egat ions in the indictment. Specifically,
Castrello n a ss ert s that the rec itation under the “ Findings on Deadly Weapon ” sect ion of each judg ment of “ Yes, not a firearm ” constitutes an ina ccurate , non

- specific deadly w eapon f inding. This argument is mer itless

. If a defendant used o r e x hibited a deadly weapon during the commission of or the immediate flight from a felony off ense, a deadly weapon find ing may be entered

on the judgment. Tex. Code Cri m. Proc. Ann. arts. 42.01, § 1(21) , 42A.054( b)

– (c). A7 deadly weapon finding must be spec ific and separate from the charged offense

. Ex parte Brooks , 722 S.W.2d 140, 142 (Tex. Crim. App. 1986) . Thus, “ the judgment must contain something more than, for ex ample, the mere ‘ recitation of the offense in the judgment with the words ‘deadly weapon, ’ or ‘firearm use d,’ or other similar phrase s added to the offense for which the defendant is convicted

. ’ ” Cobb v. State , 95 S.W.3d 664, 667 (Tex. App.

— Houston [1 st D ist.] 20 02, no pet.) (quoting B roo ks , 722 S.W.2d at 142)

. But a tr ial court ’ s utilizatio n of st andard dea dly weapon findings in
pre

- printed judgment forms may satisfy the require ments of s pecificity and

s eparateness. See id. ( holding that the standard Harris County affirmative dea dly

wea pon finding

— “ A ffirmative find ing: deadly weapon : yes (c ir cled) ”

— satisfie d the requirements of s epar ateness and specificity); Polanco v. State , 914 S.W.2d 269, 272 (Tex. App.

— Beaumont 1996, pet ref ’ d) (holding pre

- printed , fill

- in

- the

- bla nk judgment contain ing “ a pre

- printed item: FINDING USE OF DEADLY
WEAPON ” next to which w as typed “Affirmative Finding ” satis fied the requirements
of s eparateness and specificity). A nd a deadly wea pon finding need not indic ate the

s pecific type of deadly weapon found unless it was a firearm. See Tex. Code Crim

. Proc. Ann. art. 42A.054 (d) ; Hook s v. State , 860 S.W.2d 110, 114 n.7 (Tex. Crim . App. 1993) (interpreting former Tex . Code Crim. Proc. Ann. art . 42.12, § 3g( a)(2) (repealed 2017) )

. Here, the trial court ’ s judgments in dic ated its deadly weapo n finding in two

se parate place s. As noted abov e, t he first page of each j udgment contained a8 recitation of “ Yes, not a firearm ” under the sect ion labele d “ Findings on Deadly Weapon

. ” In additi on, each judg ment ’ s second page conta ined a sect ion for “ speci al findings ” unde r which the trial court not ed “ DEADL Y WEAPON FINDING
NOTICE

– TRUE. ” These affirmative deadly weapon findings are s pecific and separate from th e charged off ense and therefore satisfy the requirements of artic les
4 2.01 and 42A .054 of the Texas Code of C riminal Procedure. See Tex. Code Crim.
Proc. Ann. arts. 42.01, § 1(21), 42A.054( b)

– (c) ; B rooks , 722 S.W.2d at 142

. Castrellon suggests that the deadl y weapon findings were in adequate because
th ey did n ot speci fical ly identify the type of deadly weapon r eflected in the
indictment

— a motor vehicle

. But because the deadly wea pon ass ociated with
Castrel lon ’ s offense was not a firearm, the judgment need not specify that the d eadly
weapon was a motor vehicle. See Tex. Co de C rim . Proc. Ann. art. 42A.05 4 (d) ; Hooks , 860 S.W.2d at 114 n.7

. We overrule Castrellon ’ s se cond point.
III. Conclus ion Having overr uled both of Castrel lon ’ s points, we affirm the trial cour t ’ s judgment. /s/ Bonnie Sudderth Bonni e Sudderth C hief Justice Do Not Publish Te x. R. App. P. 47.2(b) Delive red : February 23, 2023