NO. 07-05-0072-CR IN THE COURT OF APPEALS FOR THE SEVENTH DISTRICT OF TE XAS

AT AMARILLO PANEL D APRIL 10, 2006

______________________________ CHARLES STERLIN G MOBLEY, Appellant

v. THE STA

TE OF TEX

AS, Appellee

_________________________________ FROM THE 108 TH DISTRICT COURT OF POTTER COUNTY; NO. 47,640-E; HON. DAVID L. GLEASON, PRESIDING

_______________________________ Memorandum Opinion

______________________________ Before QUINN, C.J., and REAVIS and CAMPBELL, JJ. Charles Sterlin g Mobley appeals

his conv iction fo r posse ssing a controlled substance and the accompanying four year sentence. The convi ction occurred afte r the State moved to adjudica te his gu ilt; adjudication of the latter had previously been deferred per a plea bargain . Appellant raises six issues whi ch we address in turn, and upon addressi ng them w e will a ffirm the j udgment a s modifie d.2

Issues one and two impl icate the trial court’s d ecision to adjudi cate appe llant’s guilt. Because the issues implicate that de cisi on, we ha ve no juri sdiction to consi der them. Hogans v

. State, 176 S.W.3 d 829, 83 2 (Tex. C rim. App. 2005). Through issues three an d four, ap pellant contendsthat the trial cou rt erred in stating, within the judgment, that appellant agreed to the sentence and wish ed notto appeal. This purportedly was error because no evidence appe ars of record supporting those stat ements. Having reviewe d the reco rd, we ag ree with appella nt. However, the error does not affect the convicti on or sen tence imp osed. Th us, we wi ll simpl y modify the judgmen t to redact those statement

s from it. T EX
. R. A PP
. P. 43.2(b) (allowing an appe llate co urt to enter the judgment w hich the trial co urt shoul d have en tered). Through his last two points, appellant questions the validity of the sentence im posed. It is purportedly invalid because the trial court failed to take judicial notice of the evidence admitted a t the origin al plea hearing. Thus, it had no e vidence upon which to determine the amount of met hamphet amine appellant possessed, which, in turn prevented it from determining the categ ory of thecrime ( e.g. first, second or third degree felony) and the quantum of punishment to impose. Unmentioned by appell a n t, howeve r, are the facts (appearing of record ) that 1) t he State indicte d appell ant for po ssessing “one gra m or more but less than four grams” of methamphetamine, 2) appellant judicially confessed in writing to the ver acity of the accusation in the indictment as part of the original plea bargain, 3) both the indictment and c onfessio n appear ed in theclerk’s record, an d 4) the t rial cou rt expresslymentione d the con fession s evera l times before assessing punishment. As argued by appellant, the trial judge ultimately convicting him and levying sentence differed from the one who initially deferred appellant’s adjudica tion of guilt. Given that the second3

judge was not involved in the original plea hearing but knewof appellant’s confession, that both the confe ssion an d indict ment w ere part o f the clerk ’s record , and tha t the cour t expresslyreferred to the confessio n, one can reasonably deduce that the trial court took judicial note of t hat confe ssion aswell as its scop e and eff

ect when levying sentence

. See Holloway

v. State, 666 S.W.2 d 104, 10 8 (Tex. C rim. App. 1984) (ho lding th at a trial court may judicia lly note , sua spon te , the case record). Furthermore, appel lant ci tes us to nothing that pretermits a trial court from relying on a prior confes sion in determining the category of felon y involv ed or in assessin g punish ment. Fin ally, we note that the punishmentlevied ( i.e. four years imprisonment and an $800 fine) was well within the range allowed when one (like appellant) commits a felony o f the thir d degree for posse ssing mor e than one but

less than four grams of a controlled substanc e. See T EX
. H EALTH & S AFETY C OD E A NN . §481.115(c) (indicating that such an offense is a felony of the thir d degree) ; T EX
. P ENAL C ODE A NN
. §12.34 (specifying the range of punishm ent for a felony o f the thir d degree to

be impri sonment u p to ten y ears and a fine up to $10,0 00). Accordingly, we 1) overrule issues one, two, five and six, 2) sustain issues three and four, 3) modify the trial court’s judgment to redact the statements that appellant accepted the sente nce and w ished no t to appe al, and 4 ) affirm th e judgmen t as modi fied.

Brian Quinn Chief Justice Do not publish.