      TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN


                                       NO. 03-08-00049-CR



                                   Shamane Forcey, Appellant

                                                  v.

                                   The State of Texas, Appellee


  FROM THE DISTRICT COURT OF CALDWELL COUNTY, 274TH JUDICIAL DISTRICT
        NO. 2002-023, HONORABLE JACK H. ROBISON, JUDGE PRESIDING



                                           OPINION


               Appellant Shamane Forcey was indicted for the offenses of aggravated robbery and

attempted capital murder. Forcey pleaded guilty to the charge of aggravated robbery, a first-degree

felony, see Tex. Penal Code Ann. § 29.03 (West 2003), pursuant to a plea agreement, and the State

dismissed the charge of attempted capital murder. The trial court assessed punishment at 25 years’

confinement and a $10,000 fine. While Forcey did not initially appeal his conviction, an out-of-time

appeal was granted by the Texas Court of Criminal Appeals and the trial court certified Forcey’s

right to appeal. On appeal, Forcey argues that his guilty plea was involuntary because (1) the trial

court failed to admonish him that he had a right to withdraw his plea if the plea agreement was not

followed, (2) the trial court failed to follow the plea agreement, and (3) he received ineffective

assistance of counsel because his trial counsel failed to inform him of his right to withdraw the plea.

Because we have determined that the trial court inadvertently assessed a fine exceeding the plea
agreement but that this error did not render Forcey’s guilty plea involuntary, we modify the trial

court’s judgment and affirm the judgment as modified.


                                         BACKGROUND

                 On July 28, 2001, a man entered a convenience store in Caldwell County and robbed

the store manager at gunpoint. According to the statement of the store manager, the man who robbed

him pulled the trigger on his gun, but the gun never fired. Several days later, Luling police officers

served an unrelated warrant on an individual who stated that he had heard Shamane Forcey bragging

about robbing a local convenience store, including that he had pulled the trigger on his gun, but that

it did not fire.1 The police went to Forcey’s residence and spoke with his grandmother, but were

unable to contact Forcey. Forcey turned himself in to the Luling Police Department later that day.

After receiving his Miranda warnings,2 Forcey gave a tape-recorded statement admitting to the

robbery but denying having pulled the trigger on his gun.

                 After plea negotiations, Forcey and the State reached an agreement for a maximum

sentence of 50 years and a $2,000 fine for the count of aggravated robbery, with the State agreeing

to dismiss the attempted murder charge. Forcey signed a plea agreement, which contained an

admonishment that if the trial court chose not to follow the punishment recommendations found in

the plea agreement, “Defendant shall be permitted to withdraw his plea of guilty or nolo contendere

(no contest).”


       1
           This informant later gave a written statement that differed slightly from the initial
conversation he had with police, as described in the police report. According to the written
statement, Forcey had bragged about the robbery to the informant’s cousin, who then told the story
to the informant.
       2
           Miranda v. Arizona, 384 U.S. 436 (1966).

                                                  2
                Prior to accepting Forcey’s guilty plea, the trial court asked, “Before you signed and

initialed [the plea agreement] in this case, did you read the document, understand it completely and

go over it with your attorney . . . ?” Forcey responded, “Yes, sir.” The trial court then questioned

Forcey regarding his understanding of the plea-bargain process, stating, “And do you understand that

if that judge decides that the 50-year sentence is too lenient, that you should have more time in

incarceration as punishment, then the plea bargain is totally set aside? . . . Are you aware of that?”

Again, Forcey responded, “Yes, sir.” During the plea hearing, the trial court mentioned the 50-year

cap on imprisonment five times. No mention was made of the $2,000 fine cap by any party at either

the plea hearing or the punishment hearing.

                In both its written judgment and oral pronouncement, the trial court assessed

punishment at 25 years’ confinement and a $10,000 fine, exceeding the maximum fine of $2,000

under the plea agreement. After his conviction, Forcey filed a petition for writ of habeas corpus,

alleging, among other things, that trial counsel was ineffective for failing to file a notice of appeal.

The court of criminal appeals granted Forcey an out-of-time appeal, and this appeal followed.

                There is some dispute regarding whether Forcey was able to read and write at the time

he entered his plea. Forcey testified at the hearing on his petition for writ of habeas corpus that,

despite having graduated from high school, he could not read or write at the time he pleaded guilty

in this case. His trial counsel, however, testified that she believed Forcey was able to read and

comprehend the plea papers that he signed. Furthermore, Forcey acknowledged sending a two-page

handwritten letter to the trial court on August 20, 2002, the month after his plea was entered,

requesting that the trial court reduce his sentence.



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               In findings of fact and conclusions of law, the trial court stated that it “intended to

stay within the plea bargain and was unaware at the time of sentencing that there was a cap on the

fine. In this Court’s experience, it is extremely unusual to have a cap as high as fifty (50) years on

a first degree felony that includes a cap on the fine.” The court further stated, “Neither the State nor

the defense nor anyone made the Court aware that it had exceeded the fine cap. Had anyone brought

it to my attention, I would have reformed the sentence to $2,000.00.”

               In three points of error, Forcey argues that his guilty plea was involuntary because

(1) the trial court failed to admonish him of his right to withdraw his plea if the plea agreement was

not followed, (2) the sentence imposed exceeded the terms of the plea agreement, and (3) his trial

counsel was ineffective in failing to inform him of his right to withdraw the plea.


                                           DISCUSSION

               In his first issue on appeal, Forcey argues that his guilty plea was involuntary because

the trial court failed to admonish him regarding his right to withdraw the plea when the sentence

exceeded the plea agreement. Prior to accepting a guilty plea made pursuant to a plea bargain, a trial

court must admonish the defendant of the fact that the plea agreement is not binding on the court,

inform the defendant whether the court will accept or reject the plea agreement, and if the agreement

is rejected, permit the defendant to withdraw his plea. Tex. Code Crim. Proc. Ann. art. 26.13(a)(2)

(West Supp. 2008). In the present case, the trial court inadvertently exceeded the plea agreement in

sentencing Forcey, without informing him that the plea agreement had been rejected or giving him

an opportunity to withdraw. The admonishment required by article 26.13 may be given orally or in

writing, id. art. 26.13(d), and the plea agreement, signed by both Forcey and his counsel, included


                                                   4
a written admonishment regarding the right to withdraw the plea in the event that the plea agreement

was rejected by the trial court. However, in light of the dispute regarding whether Forcey was able

to read or write at the time of trial, as well as the fact that the trial court sentenced Forcey outside

the plea agreement without informing him that the plea agreement had been rejected, we will assume

without deciding that the written admonishment was inadequate under the circumstances. See

Gonzales v. State, 963 S.W.2d 844, 846 (Tex. App.—San Antonio 1998, no pet.) (noting that

voluntariness of plea is determined by totality of circumstances surrounding entry of plea).

                In reviewing a trial court’s failure to admonish a defendant under article 26.13, we

will not overturn the conviction unless, after examining the record, we conclude that the defendant

was not aware of the consequences of his plea and that he was misled or harmed by the lack of

admonishment. Burnett v. State, 88 S.W.3d 633, 638 (Tex. Crim. App. 2002). In this context,

“harm” means that “appellant probably would not have pleaded guilty but for the failure to

admonish.” Id. at 638 n.14. Reversal is only warranted if “the error may have had a ‘substantial

influence’ on the outcome of the proceeding.”             Webb v. State, 156 S.W.3d 653, 655

(Tex. App.—Dallas 2005, pet. ref’d).

                We may assume from the trial court’s statements on the record that, had it been aware

that the sentence imposed exceeded the plea agreement, it would have modified the sentence to

reflect a $2,000 fine. See State v. Aguilera, 165 S.W.3d 695, 698 (Tex. Crim. App. 2005) (holding

that trial court may modify sentence “on the same day as the assessment of the initial sentence and

before the court adjourns for the day”). Such a modification would have rendered any further

admonishment inapplicable to Forcey because he would no longer have had a right to withdraw his

plea. See Carranza v. State, 980 S.W.2d 653, 655-56 (Tex. Crim. App. 1998) (noting that failure


                                                   5
to admonish is harmless error where admonishment is legally inapplicable to defendant). Therefore,

we conclude that the trial court’s failure to orally admonish Forcey regarding rejection of the plea

bargain and his right to withdraw the plea did not have a substantial effect on the outcome of the

proceeding and that Forcey suffered no harm as a result.3 Forcey’s first point of error is overruled.

               In Forcey’s second point of error, he argues that his plea was rendered involuntary

when the trial court rejected the plea bargain by imposing a fine greater than the plea agreement’s

maximum of $2,000. We have the authority to modify the judgment of the trial court on appeal, see

Tex. R. App. P. 43.2(b), including modifying punishment to accurately reflect the intent of the trial

court. See McCray v. State, 876 S.W.2d 214, 217 (Tex. App.—Beaumont 1994, no pet.) (modifying

judgment so that sentence was within applicable range of punishment where trial court’s intent to

impose maximum sentence was clear from record); see also Bigley v. State, 865 S.W.2d 26, 27-28

(Tex. Crim. App. 1993) (modifying judgment to reflect conviction of lesser-included offense);

McGill v. State, 200 S.W.3d 325, 329 (Tex. App.—Dallas 2006, no pet.) (modifying judgment to

delete deadly-weapon finding not supported by evidence). In its findings of fact and conclusions of

law issued in connection with Forcey’s habeas petition, the trial court recommended that the

sentence be modified to “set the fine at the stated $2,000.00 as the trial court intended.” Given the



       3
            In addition, Forcey’s testimony at the writ hearing reflects an understanding of the
consequences in the event that the trial court rejected the plea bargain, as well as an overriding
concern with the amount of jail time he received, rather than the amount of fine imposed. He
testified that his counsel had reviewed the plea paperwork with him, and that “the Judge said if he
doesn’t go along with the plea bargain that it’ll be dropped and both charges will be picked up
again.” Forcey repeatedly expressed dissatisfaction with the amount of jail time he received, stating,
“I didn’t want 25 years,” and complaining that his trial counsel had assured him he would only
receive a ten-year sentence.

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trial court’s clear intent to sentence Forcey within the confines of the plea agreement, we modify the

judgment to reflect a sentence of 25 years’ incarceration and a $2,000 fine, rather than a $10,000

fine. This modification renders Forcey’s second point of error moot.

               In Forcey’s third point of error, he argues that his guilty plea was rendered involuntary

by the ineffective assistance of his trial counsel in failing to inform him of his right to withdraw his

plea when the trial court imposed a $10,000 fine. When an appellant challenges the voluntariness

of his plea on the basis of ineffective assistance of counsel, we review “(1) whether counsel’s advice

was within the range of competence demanded of attorneys in criminal cases and if not, (2) whether

there is a reasonable probability that, but for counsel’s errors, he would not have pleaded guilty and

would have insisted on going to trial.” Ex Parte Morrow, 952 S.W.2d 530, 536 (Tex. Crim. App.

1997). Without addressing whether Forcey’s trial counsel acted within the necessary range of

competence, we conclude that Forcey’s plea was voluntary because he cannot establish a reasonable

probability that he would have withdrawn his plea if counsel had informed him of his right to do so.

As previously addressed in relation to Forcey’s first point of error, we can assume that, had counsel

brought the plea bargain to the trial court’s attention at the sentencing hearing in an attempt to

withdraw the plea, the trial court would have modified the sentence to reflect a fine of $2,000 and

Forcey would no longer have had a right to withdraw. In light of the trial court’s stated intent to

sentence Forcey within the confines of the plea agreement, we cannot conclude that, but for trial

counsel’s actions, Forcey would have withdrawn his plea. As a result, Forcey’s third point of

error is overruled.




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                                        CONCLUSION

               Because we have determined that the trial court inadvertently assessed punishment

exceeding the plea agreement, but that Forcey’s guilty plea was nonetheless voluntary, we will

modify the trial court’s judgment to assess punishment at 25 years’ imprisonment and a $2,000 fine,

rather than a $10,000 fine, and we will affirm the judgment as modified.



                                            ___________________________________________

                                             Diane M. Henson, Justice

Before Justices Patterson, Waldrop and Henson

Modified and, as Modified, Affirmed

Filed: September 10, 2008

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