NUMBER 13-22-00561-CR

COURT OF APPEALS 

THIRTEENTH DISTRICT OF TEXAS 

CORPUS CHRISTI – EDINBURG

 

DERLY DELAGARZA, Appellant,

v.

THE STATE OF TEXAS, Appellee.

 

On appeal from the 28th District Court

of Nueces County, Texas.

 

MEMORANDUM OPINION 

Before Chief Justice Contreras and Justices Silva and Peña

Memorandum Opinion by Justice Silva

Appellant Derly Delagarza pleaded guilty pursuant to a plea bargain agreement to 

one count of aggravated assault causing serious bodily injury, and one count of familyviolence assault, impeding breath or circulation, see TEX. PENAL CODE ANN. 

§§ 22.02(a)(1), 22.01(b)(2)(B), offenses enhanced to first-and second-degree felonies, 

respectively, by appellant’s prior felony conviction. See id. §§ 12.42(a), 12.425(a). 
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Appellant was placed on deferred adjudication community supervision, which the trial 

court subsequently revoked and thereafter adjudicated appellant guilty. See TEX. CODE 

CRIM. PROC. arts. 42a.101–.111. Appellant was sentenced in each count to twenty years’ 

incarceration. By a single issue, and challenging only his family-violence assault 

conviction, appellant argues the trial court erred in sentencing him outside the maximum 

punishment range. We affirm. 

I. BACKGROUND

Appellant entered into a plea bargain agreement on August 2, 2021. Although 

appellant’s indictment contained a punishment enhancement provision, as did appellant’s 

written judicial confession and stipulation and certification of discovery, appellant’s signed 

plea agreement contained no enhancement provision. Moreover, appellant’s written 

admonishments on the range of punishment indicated appellant was pleading guilty to a 

third-degree felony punishable by a term of imprisonment not to exceed ten years. The 

portion of the form concerning an option for “Enhanced Punishments under the [Texas] 

Penal Code” was left unmarked. 

At a hearing on appellant’s plea submission, however, the following colloquy 

transpired between the trial court, appellant, and appellant’s counsel: 

THE COURT: Do you recall [written admonishments] being 

explained to you?

[THE DEFENDANT]: Yes. 

[DEFENSE COUNSEL]: He hasn’t actually seen those documents, Your 

Honor. We did discuss those on the phone.

THE COURT: All right. And you gave permission to your 

attorney to sign on your behalf, is that correct?
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[THE DEFENDANT]: Yes, ma’am, I sure did.

THE COURT: Now having signed those documents with your 

attorney’s permission, you have waived 

important rights. One of those rights is to have a 

jury decide your case. Do you understand that?

[THE DEFENDANT]: Yes, ma’am.

THE COURT: And so are we going with RFO on both counts? 

One count? What are we doing?

[DEFENSE COUNSEL]: I’m sorry, Your Honor?

THE COURT: He is under repeat felony offender.

[DEFENSE COUNSEL]: Yes, Your Honor, I believe it is as charged.

THE COURT: As charged. So you understand the range of 

punishment for both these counts, Mr. 

De[lagarza]?

[THE DEFENDANT]: Yes, ma’am.

The trial court thereafter accepted appellant’s pleas of true as to the enhancement

paragraphs and guilty pleas to the counts as indicted, deferred findings of guilt, and 

placed appellant on a term of community supervision on both counts.

On September 6, 2022, the State filed a second1 original motion to revoke and 

adjudicate appellant guilty. The State alleged that appellant violated the terms of his 

community supervision by testing positive for amphetamines, failing to report to his 

community supervision officer after being released from an inpatient sanction facility in 

1 On January 12, 2022, four months after being placed on community supervision, the State filed 

a motion to revoke and adjudicate guilt. The motion alleged sixty-five violations of certain terms and 

conditions of his community supervision. Appellant pleaded true, and the trial court found the appellant had 

violated certain terms and conditions and ordered appellant to continue probation.
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July, failing to install a Global Positioning System (GPS) electronic monitor device, and 

failing to refrain from contacting the complainant.2

At a hearing on the State’s motion, appellant pleaded true to the allegations, and 

the trial court found the allegations to be true, revoked appellant’s community supervision, 

and sentenced him in each count to twenty years’ incarceration, with the sentences to be 

served concurrently. While assessing appellant’s punishment, the trial court noted that 

the underlying judgment of deferred adjudication indicated appellant had pleaded true to 

the enhancement paragraph as indicted, making appellant a repeat felony offender. See

id. §§ 12.42(a), 12.425(a). There were no objections from appellant. This appeal followed.

II. ENHANCEMENT

By a single issue, appellant asserts: 

Th[e] judgment is void as (1) there is no indication that the [appellant] was 

aware of the range of punishment for the offenses, with every indication he 

was pleading guilty to only a third-degree range of punishment, no repeater 

status; and (2) there is no indication in the plea paperwork or judgment that 

the range of punishment had been enhanced . . . which means that a twentyyear sentence for Count 2 exceeds the maximum range of punishment.

We construe appellant’s issue as arguing that his guilty plea was involuntary, and the 

judgment therefore void, because he was inaccurately admonished about the applicable 

punishment range.

Significantly, as the State notes in its brief, appellant does not provide argument

or cite authority to support an involuntary plea claim under either the Due Process Clause 

2 Appellant was alleged to have made sixty-three calls to the complainant during a three-month

period.
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or article 26.13 of the Texas Code of Criminal Procedure. See TEX. CODE CRIM. PROC.

ANN. art. 26.13(a)(1) (requiring that the trial court shall admonish the defendant of the 

range of the punishment attached to the offense prior to accepting a plea of guilty); see 

generally Davison v. State, 405 S.W.3d 682, 687 (Tex. Crim. App. 2013) (noting that “any 

claim that the trial court failed to follow the mandate of [article 26.13] is separate from the 

claim that the guilty plea was accepted in violation of due process”). At our sole discretion, 

our analysis proceeds with an inquiry into both grounds. 

As previously mentioned, article 26.13 mandates that “[p]rior to accepting a plea 

of guilty or a plea of nolo contendere, the court shall admonish the defendant of . . . the 

range of the punishment attached to the offense.” TEX. CODE CRIM. PROC. ANN. art.

26.13(a)(1). The trial court may do so “either orally or in writing.” Id. art. 26.13(d). A trial 

court’s substantial compliance with this requirement “is sufficient, unless the defendant 

affirmatively shows that he was not aware of the consequences of his plea and that he 

was misled or harmed by the admonishment of the court.” Id. art. 26.13(c). The failure to 

give article 26.13 admonishments is non-constitutional error and “subject to a harmless 

error analysis under Texas Rule of Appellate Procedure 44.2(b), which examines whether 

the defendant’s substantial rights were affected.” Loch v. State, 621 S.W.3d 279, 281–82 

(Tex. Crim. App. 2021); Davison, 405 S.W.3d at 688 (“Indeed, because [an alleged 

violation of article 26.13(a)] is predicated solely upon a statutory violation, the standard 

for determining harm that pertains to claims of non-constitutional error applies—Rule 

44.2(b).”). Rule 44.2(b) provides that “[a]ny other error, defect, irregularity, or variance 

that does not affect substantial rights must be disregarded.” TEX. R. APP. P. 44.2(b). To 
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decide whether appellant’s substantial rights were affected, we “independently examine 

the record as a whole.” Loch, 621 S.W.3d 282. 

Here, the record contains no affirmative showing by appellant that he was unaware 

of the consequences of his plea. The record is without evidence that appellant was misled 

or harmed by the incorrect written admonishments as he never read the admonishments

at-issue. See Aguirre-Mata v. State, 125 S.W.3d 473, 476–77 (Tex. Crim. App. 2003)

(finding harmless error under article 26.13 because “[t]he record contains references to 

the correct punishment range and there is nothing in the record that shows appellant was 

unaware of the consequences of his plea or that he was misled or harmed”); see also 

Estrada v. State, No. 13-23-00175-CR, 2023 WL 5624100, at *4 (Tex. App.—Corpus 

Christi–Edinburg Aug. 31, 2023, no pet.) (mem. op., not designated for publication)

(same). To the contrary, as noted above, the record affirmatively demonstrates that 

appellant was informed of the enhanced punishment range before the trial court accepted 

his pleas of true to the enhancement paragraphs and his guilty pleas. Thus, any error 

under article 26.13 regarding the incorrect written admonishments was rendered 

harmless.

Meanwhile, for an appellant to prevail on a constitutional due process claim, “it is 

not enough that the record is unrevealing with respect to whether he was admonished by 

the trial court; the record must also be silent with respect to whether he was otherwise

provided, or nevertheless aware of, the requisite information to render his guilty plea 

voluntary and intelligent.” Davison, 405 S.W.3d at 687. Having already concluded that 

appellant was informed of the enhanced punishment range before the trial court accepted 
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his pleas of true to the enhancement paragraphs and his guilty pleas, we find this subissue unavailing. See id. 

Finally, with regard to appellant’s generalized “void judgment” assertions, we note 

that appellant “presented no evidence revealing any legal impediment to the use of his 

prior felony convictions for enhancement purposes.” See Ex parte Parrott, 396 S.W.3d 

531, 536–37 (Tex. Crim. App. 2013). It is undisputed that appellant entered into a pleabargain agreement with the State. Appellant, as the appellant in Parrott, was admonished 

as to the range of punishment supported by his criminal history—to which he pleaded

true. Id.; see generally Wood v. State, 486 S.W.3d 583, 587 (Tex. Crim. App. 2016). 

Because the entirety of the record supports a second-degree punishment, even assuming 

the trial court erred in its written admonishment, appellant has not shown that he was 

harmed by the error. See Ex parte Parrott, 396 S.W.3d at 536–37; see generally Wright

v. State, 506 S.W.3d 478, 482 (Tex. Crim. App. 2016). We overrule appellant’s sole issue.

III. CONCLUSION

We affirm the trial court’s judgment.

CLARISSA SILVA

 Justice 

 

Do not publish.

TEX. R. APP. P. 47.2 (b).

Delivered and filed on the

7th day of December, 2023.