                          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




     1
         See Tex. R. App. P. 47.4.
paragraphs. The Texas Court of Criminal Appeals granted Appellant an out-of-

time 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



      2
        In 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-of-
time 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).


                                        2
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


      3
       Before 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”).


                                          3
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:



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      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

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               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?



                              6
[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


                               7
                         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 first-

degree 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).


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      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.



                                           9
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.


                                         10
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



                                      11
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


                                        12
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.




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                                          /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




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