









 




 


NO.
12-10-00114-CR
      
IN THE COURT OF
APPEALS 
 
            TWELFTH
COURT OF APPEALS DISTRICT
 
                                      TYLER, TEXAS
QUINTINE
AARON SHARPE,                        '                 APPEAL FROM THE 217TH
APPELLANT
 
V.                                                                         '                 JUDICIAL
DISTRICT COURT OF
 
THE STATE OF TEXAS,
APPELLEE                                                        '                 ANGELINA COUNTY,
TEXAS
                                                        
                                         
                                                      MEMORANDUM
OPINION
Quintine
Aaron Sharpe appeals his conviction for three counts of burglary of a
habitation. In his sole issue on appeal, Appellant argues that his sentence is
void.  We affirm.
 
Background
Appellant
was charged by information with three counts of burglary of a habitation, a second
degree felony.[1]  Appellant pleaded “guilty” to
the offense charged in the information.[2]  On March 31, 2010, the trial court held a
sentencing hearing on Appellant’s burglary of a habitation offense.  The
hearing also included sentencing Appellant for another offense, theft.[3] During that hearing, Appellant
testified that he wanted to receive three years of imprisonment, instead of
four and eight years of deferred adjudication as offered by the State.  On
cross examination, Appellant stated that eight years was a long time, and that
he did not want to get to the seventh year of the deferred adjudication, be
revoked, and “have to go do some pen time.”  He stated that he would prefer to
“just do it now and get it all off [his] back.”  Throughout the hearing,
Appellant insisted that he would rather go to the penitentiary than serve out a
probated sentence. 
At
the conclusion of the hearing, the trial court adjudged Appellant guilty as
charged of theft and assessed his punishment at one year of confinement.  However,
the trial court deferred further proceedings without entering an adjudication
of guilt on the three counts of burglary of a habitation, and ordered that
Appellant be placed on deferred adjudication community supervision for eight
years.[4]  After sentencing, Appellant
again insisted that he wanted to “get it over with.” Then, the trial court
adjourned the hearing.
            The
next day, April 1, 2010, the trial court formally admonished Appellant on the
sentencing range for both offenses.  Appellant pleaded guilty to both offenses,
stated that his pleas were being made freely and voluntarily, and waived his
right to a jury trial and to indictment by a grand jury.  The trial court
stated that it was “redoing” Appellant’s sentencing because it believed that
when Appellant pleaded guilty in March, he had signed “these papers about these
rights and warnings . . . [but when] they were located, [Appellant] had not
signed them.”  Thus, the trial court stated that it was “going over them orally
so that [Appellant] understand[s] there’s no question about whether or not [he
was] told about [his] rights.”  Further, the trial court stated that it was
“undoing what [it] did yesterday and repeating it to get the papers right.”  At
that point, the following exchange occurred:
 
THE COURT: 
Because [defense counsel] said that he was going to go over the papers and get
you to sign them, but there was some misunderstanding or something and you
didn’t want to sign them. Is that right?
 
APPELLANT: Yes,
sir.
 
THE COURT:  Do
you want to sign them or you just want to let it go –
 
APPELLANT:  He
say if I don’t sign them I - - I revoke my probation.  That’s what I want to do
because I’m not about to do a year in state jail and still come out on
probation.
 
THE COURT: 
Okay. You’re saying you don’t want to do any probation?
 
APPELLANT:  I’m
not about to do a year in state jail and still come out on eight years
deferred.
 
THE COURT: 
Okay. Well, you understand yesterday you said you wanted three years TDC,
right?
 
APPELLANT:  Yes,
sir.
 
THE COURT:  If
you go to TDC it’s going to be for a lot longer than that.
 
APPELLANT:  Yes,
sir.
 
THE COURT:  So
what do you want to do?
 
APPELLANT:  I’m
not about to do a year and still come out on eight years deferred.
 
THE COURT:  So
you’d rather do 20?
 
APPELLANT:  I do
know –
 
THE COURT:  Sir?
 
APPELLANT:  You
said something about did the DA have an offer or something.
 
THE COURT:  The
DA made an offer for probation on both of them.  Based on your criminal
history, I’m rejecting that offer.
 
APPELLANT:  He
said – 
 
THE COURT:  And
yesterday you heard what my decision was.  And you’re saying today you don’t
want to do that, right?  Then your choice is to go do it anyway or just say,
Judge, give me some time. You don’t get to pick the number, but it’s not going
to be three.
 
APPELLANT:  Give
me some time. I’d like to do – 
 
THE COURT:  I’m
sorry. I can’t hear you.
 
APPELLANT:  I’m
not about to do a year and then still come out and do eight years deferred.
 
Following
this discussion, the trial court accepted Appellant=s pleas of guilty to both offenses, found him guilty
of both offenses, assessed his punishment at two years of confinement for the
offense of theft, and assessed his punishment at ten years of imprisonment for
the three counts of the offense of burglary of a habitation.[5]  The trial court ordered that
the sentences be served concurrently.  This appeal followed.
 
Void
Sentence
            In
his sole issue, Appellant argues that his sentence for the three counts of
burglary of a habitation is void.  More specifically, he contends that once the
trial court adjourned for the day and he was removed from the courtroom, he
began serving his sentence and the trial court lost its plenary power to modify
the sentence.  The State disagrees, arguing that Appellant’s deferred
adjudication community supervision was not a sentence for the purpose of double
jeopardy and the trial court retained its plenary power to modify the sentence.

Applicable
Law
At
a minimum, a trial court retains plenary power to modify its sentence if a
motion for new trial or motion in arrest of judgment is filed within thirty
days of sentencing.  State v. Aguilera, 165 S.W.3d 695, 697-98
(Tex. Crim. App. 2005).  A trial court also retains plenary power to modify its
sentence if the modification is made on the same day as the assessment of the
initial sentence and before the court adjourns for the day.  Id.
at 698.  However, when a defendant receives deferred adjudication, no sentence
is imposed.  Taylor v. State, 131 S.W.3d 497, 502 (Tex. Crim.
App. 2004). 
“[I]f
a party affirmatively seeks action by the trial court, that party cannot later
contend that the action was error.”  Druery v. State, 225 S.W.3d
491, 505-06 (Tex. Crim. App. 2007) (quoting Prystash v. State, 3
S.W.3d 522, 531 (Tex. Crim. App. 1999)).  The doctrine of invited error is
properly thought of, not as a species of waiver, but as estoppel.  Prystash,
3 S.W.3d at 531.  Thus, the invited error doctrine estops a party from
complaining that a trial judge erred when that party affirmatively sought the
ruling.  State v. Moreno, 294 S.W.3d 594, 601 (Tex. Crim. App.
2009). 
Analysis
In
this case, the trial court ordered on March 31, 2010, that Appellant be placed
on deferred adjudication community supervision for eight years for three counts
of the offense of burglary of a habitation.  The next day, the trial court
found Appellant guilty and assessed his punishment at ten years of imprisonment
for that offense.  Because the trial court did not impose a sentence when it
placed Appellant on deferred adjudication community supervision, Appellant’s
sentence of April 1, 2010 is not void.  See Taylor, 131
S.W.3d at 502.
Further,
the day after he was placed on community supervision, Appellant told the trial
court that he did not want to be placed on eight years of deferred adjudication
community supervision, and requested time in the penitentiary.  He also stated
that he refused to sign the plea papers in the understanding that refusing to
do so would revoke his community supervision.  “[I]f a party affirmatively
seeks action by the trial court, that party cannot later contend that the
action was error.”  See Druery, 225 S.W.3d at 505-06.  Because
Appellant invited error by orally requesting the trial court sentence him to
the penitentiary the day after he was placed on deferred adjudication community
supervision, he is estopped from claiming on appeal that the trial court erred
by sentencing him to imprisonment.  See Clark v. State, No.
05-09-00004-CR, 2010 WL 987759, at *3 (Tex. App.—Dallas Mar. 19, 2010, no pet.)
(not designated for publication) (defendant orally requesting that trial court
proceed to final adjudication is estopped to claim on appeal that trial court
erred by proceeding without written motion); see also Moreno, 294
S.W.3d at 601; Prystash, 3 S.W.3d at 531.
Appellant=s sole issue is overruled.
 
Disposition
The
judgment of the trial court is affirmed.
 
                                           Sam Griffith
                                                                                                     Justice
 
Opinion
delivered January 5, 2011.
Panel
consisted of Worthen, C.J., Griffith, J., and Hoyle, J.
                                                                    
 
 
 
 
 
 
 
(DO NOT PUBLISH)




[1]
See Tex. Penal Code Ann. §
30.02(a)(3), (c)(2) (Vernon 2003).
 


[2] Although
there is no record of Appellant’s plea of guilty, he acknowledged at his
sentencing hearing on March 31, 2010, that he entered a guilty plea on March 5,
2010.  Further, he pleaded guilty at the “resumption” of the sentencing hearing
on April 1, 2010. 
 


[3]
Appellant is not appealing his conviction for theft.
 


[4] See Tex. Code Crim. Proc. Ann. art. 42.12, § 5(a) (Vernon Supp. 2010).



[5] An individual
adjudged guilty of a second degree felony shall be punished by imprisonment for
any term of not more than twenty years or less than two years and, in addition,
a fine not to exceed $10,000.  Tex.
Penal Code Ann. § 12.33 (Vernon Supp. 2010).
 


