                                    In The
                               Court of Appeals
                      Seventh District of Texas at Amarillo
                               ________________________

                                    No. 07-11-00468-CR
                               ________________________

                       MICHAEL ANTHONY GRADO, APPELLANT

                                               V.

                            THE STATE OF TEXAS, APPELLEE



                           On Appeal from the 222nd District Court
                                  Oldham County, Texas
               Trial Court No. OCR-00J-034; Honorable Roland Saul, Presiding


                                        June 28, 2013

                              MEMORANDUM OPINION
                    Before QUINN, C.J., and HANCOCK and PIRTLE, JJ.


      On September 10, 2002, following a plea of guilty, Appellant, Michael Anthony

Grado, was convicted of possession of amphetamine in an amount by aggregate

weight, including adulterants and dilutants, of 400 grams or more. 1 Punishment was

assessed at ten years confinement, suspended in favor of ten years community


1
TEX. HEALTH & SAFETY CODE ANN. § 481.116(a) & (e) (W EST 2010).
supervision, and a fine of $10,000. On March 30, 2011, the State filed a motion to

revoke Appellant’s community supervision alleging he had violated numerous conditions

thereof. On November 3, 2011, at a hearing on the State’s amended motion, Appellant

entered a plea of true to all allegations and evidence was presented. At the conclusion

of the hearing, the trial court revoked Appellant’s community supervision and imposed

the original sentence of imprisonment for a term of ten years and a fine of $10,000.

This appeal followed. We modify and affirm in part and reverse and remand for a new

punishment hearing.


                                   ISSUES PRESENTED


      By his first issue, Appellant questions whether the trial court arbitrarily refused to

consider the correct range of punishment when the prosecutor left the incorrect

impression, concurred in by defense counsel and approved by the trial court, that ten

years confinement was the only punishment option available. By his second issue,

Appellant asserts he was constructively denied the assistance of counsel during

sentencing when his counsel concurred with the State’s incorrect advice to the trial

court on the sentencing range, precluding any possibility that counsel could submit the

State’s request for the maximum sentence to any “meaningful adversarial testing.”


      The State concedes that error was committed when the State represented, and

the trial court agreed, that the minimum punishment upon revocation was ten years

confinement instead of five years. However, the State argues that Appellant failed to

preserve the error for review by failing to object. The State also concedes that trial

counsel’s performance was deficient but argues that Appellant has not established that


                                            2
the outcome of the proceeding would have been different. In the event this Court finds

Appellant’s counsel’s performance to be ineffective, the State prays that this appeal be

abated to allow the trial court to determine what effect counsel’s error had on the

outcome of the proceeding.


      By reply brief, Appellant clarifies that his second issue is not one of ineffective

assistance of counsel requiring a showing of deficient performance and a reasonable

probability of a different outcome. Rather, he maintains the claim is one of constructive

denial of counsel for which prejudice is presumed. (Emphasis in Appellant’s brief). Our

disposition of Appellant’s first issue allows us to pretermit consideration of his second

issue. TEX. R. APP. P. 47.1.


                                     BACKGROUND


      In 2000, Appellant was indicted for possession of more than 400 grams of

amphetamine, an offense defined by section 481.116(a) of the Texas Health & Safety

Code Annotated (W EST 2010). Pursuant to a plea bargain, on September 10, 2002,

Appellant was convicted of the offense charged and sentence was imposed at ten years

confinement, suspended in favor of ten years community supervision, and a fine of

$10,000.   The judgment entered erroneously reflects, however, that Appellant was

convicted of “[p]ossession of Controlled Substance, Amphetamine – 400 grams or more

in violation of Section 481.115 of the Texas Health & Safety Code.” Section 481.115(a)

defines the offense of possession of a Penalty Group 1 controlled substance.

Amphetamine is a Penalty Group 2 controlled substance. TEX. HEALTH & SAFETY CODE

ANN. § 481.103(a)(3).


                                           3
        Effective September 1, 1994, possession of 400 grams or more by aggregate

weight of a Penalty Group 2 controlled substance was punishable by imprisonment for

life or for a term of not more than 99 years or less than five years, and a fine not to

exceed $50,000. 2 Accordingly, at all times relevant to this proceeding, Appellant was

subject to a minimum sentence of five years.


        According to the record, Appellant’s community supervision was monitored in El

Paso, Texas. An Oldham County community supervision officer testified that Appellant

had paid all but approximately $900 of his $10,000 fine, court costs and restitution and

that he had successfully remained on community supervision for approximately eight

and one-half years before the State moved to revoke his community supervision.


        At the hearing on the State’s amended motion to revoke, after Appellant entered

pleas of true to the allegations in the amended motion and was admonished by the trial

court, the following colloquy occurred:


        [State]: Your Honor, before I present any evidence, I’d just like to remind
        the Court, and you’re probably aware of this already, but I just discovered
        it this morning. I think the minimum punishment in this case is ten years,
        because it’s over 400 grams. So I think the Court’s options here are to
        either leave [Appellant] on probation, or if you choose to revoke him, the
        ten years is the minimum.

        And I made a mistake about that earlier in my offer to [defense counsel],
        and I realized this morning my mistake, and so I wanted to bring that to
        the Court’s attention.



2
 Prior to September 1, 1994, possession of 400 grams or more by aggregate weight of a Penalty Group 2
controlled substance was punishable by imprisonment for life or for a term of not more than 99 years or
                                                                               st
less than ten years, and a fine not to exceed $100,000. Act of May 18, 1989, 71 Leg., R.S., ch. 678, § 1,
1989 TEX. GEN. LAWS 2230, 2930. The minimum period of incarceration was reduced from ten years to
five years and the maximum fine was reduced from $100,000 to $50,000 by the Legislative Act of May 29,
1993, 73rd Leg., R.S., ch. 900, § 2.02, 1993 TEX. GEN. LAWS 3586, 3707.

                                                   4
      [Defense counsel]: Your Honor, addressing that issue, that is correct. I
      have had an opportunity to explain that to my client and, in fact, to his
      family, as well. And with that understanding, we are still proceeding with –
      with the understanding that is the case.

      The Court: All right.

      [State]: Your Honor --

      The Court: This was called a first degree felony, but it’s one of those that’s
      -- the punishment range is up a little above. Do you understand that, Mr.
      Grado? The minimum here, punishment, is ten years. Do you understand
      that?

      [Appellant]: The minimum?

      The Court: Yes. And that would also be the maximum that you could get.
      I could give you -- you know, what could happen here is, I can either
      revoke your probation or leave you on probation. If I revoke your
      probation, it’s -- the minimum is ten, or the maximum -- and the maximum
      is ten, so it’s a ten-year sentence. Do you understand that?

(Emphasis added).

      At the conclusion of the presentation of evidence, Appellant’s trial counsel did not

argue that Appellant be continued on community supervision, nor did he request that

the original sentence be reduced. Counsel merely asked that the court consider the

evidence presented.


                                        ANALYSIS


      The State concedes, and we agree, that the trial court was mistaken in its belief

that a ten-year sentence was the minimum punishment allowed by law. The State

contends, however, that error was not properly preserved. As applied to the unique

circumstances of this case, we disagree.




                                            5
       Article 42.12, section 23(a) of the Texas Code of Criminal Procedure provides in

part that upon revocation, the judge may “reduce the term of confinement originally

assessed to any term of confinement not less than the minimum prescribed for the

offense of which the defendant was convicted.” Therefore, even assuming the judge

had rejected the idea of continuing Appellant on community supervision, under the facts

of this case he could have reduced the term of confinement to a term of less than ten

years. Under the appropriate facts, such a reduction in sentence could have been

reasonable in light of Appellant’s completion of 85% of the probation period and

payment of more than 90% of the fine and court costs. Having erroneously excluded

the possibility of even considering the reduction of Appellant’s sentence pursuant to

article 42.12, section 23(a), the trial court erred in failing to consider the full range of

punishment.


       The State suggests we should determine that this error was not preserved

because Appellant’s counsel did not object to the prosecutor’s erroneous statement of

the law, nor did he correct the trial judge’s express adoption of that error. See TEX. R.

APP. P. 33.1. Appellant, relying on holdings from the United States Supreme Court, the

Texas Court of Criminal Appeals and other intermediate appellate courts, argues that

the trial judge’s erroneous, albeit inadvertent, refusal to consider the full range of

punishment is fundamental error, immune from waiver by the mere failure to object.


       The Texas Court of Criminal Appeals has held that “[s]ome rights are widely

considered so fundamental to the proper functioning of our adjudicatory process as to

enjoy special protection in the system.”      Marin v. State, 851 S.W.2d 275, 278-79

(Tex.Crim.App. 1993). In Marin, the Texas Court of Criminal Appeals recognized that

                                             6
within our system of jurisprudence there are at least three distinct categories: (1)

absolute requirements and prohibitions; (2) rights of litigants which must be

implemented by the system unless expressly waived; and (3) rights of litigants which

are to be implemented upon request. See Gutierrez v. State, 380 S.W.3d 167, 172,

fn.14 (Tex. Crim. App. 2012) (citing Marin, 851 S.W.2d at 279). In this context, the

important thing to remember is that procedural waiver only applies to the last category.

Id. Non-waivable rights are characterized by the principle that they are not extinguished

by inaction alone, but must be expressly waived if a defendant wants to relinquish one

or more of them. Marin, 851 S.W.2d at 279. The rights to the assistance of counsel

and to a jury trial are of this kind.   TEX. CODE CRIM. PROC. ANN. arts. 1.051(f),(g),(h),

1.13 (W EST SUPP. 2012).       Furthermore, the Texas Court of Criminal Appeals has

interpreted prior case law as providing that “a defendant has an absolute and

nonwaivable right to be sentenced within the proper range of punishment established by

the Legislature.” Gutierrez, 380 S.W.3d at 175 (citing Speth v. State, 6 S.W.3d 530,

532-33 & n.5 (Tex. Crim. App. 1999)).


       In this case, the record before us shows that the judge, prosecutor and defense

attorney proceeded under the wrong statute and considered the wrong range of

punishment. The trial court committed an error of law in assessing punishment under

section 481.115 of the Texas Health and Safety Code instead of section 481.116.

Additionally, the error was compounded when a sentence of ten years was considered

to be a foregone conclusion should the judge decide to revoke Appellant’s community

supervision.    Appellant was reasonably relying on legally trained professionals,

including the trial court and his own counsel, to either understand the offense and the


                                             7
full range of punishment or bring any misunderstanding to the trial court’s attention.

While it is unclear from the record whether counsel and the trial court were mistaken as

to the appropriate penalty group, or the applicable range of punishment, or both, what is

clear is that the trial court did not consider the proper range of punishment established

by the Legislature. Appellant equates this failure to apply the correct law and consider

the appropriate range of punishment as being tantamount to the denial of a fundamental

right. In that regard, we find that a defendant has an absolute right to be sentenced

under the correct statute and based upon a correct understanding of the applicable

range of punishment and may complain for the first time on appeal about a trial court’s

refusal to consider that range of punishment where that conduct is so egregious as to

constitute bias on the matter of punishment. See Dumesnil v. State, No. 14-00-01358-

CR, 2002 Tex. App. LEXIS 344, at *19-20 (Tex.App.—Houston [14th Dist.] Jan. 17,

2002, no pet.) (holding that a defendant is entitled to be punished upon a correct

statement of the law). See also Hernandez v. State, 268 S.W.3d 176, 184 (Tex.App.—

Corpus Christi 2008, no pet.) (finding that a defendant may complain for the first time on

appeal about a trial judge’s refusal to consider the full range of punishment).


       As such, the misunderstanding in this case concerning the full range of

punishment deprived Appellant of a fair and impartial proceeding, thereby affecting his

substantial rights. Consequently, under the unique circumstances of this case, we hold

that the right to be sentenced under the correct statute by a sentencing authority who

has meaningfully considered the appropriate range of punishment falls in that category

of rights which must be implemented by the system unless expressly waived and that

error in this category does not require an objection to be preserved for appellate review.


                                             8
        Having found the error complained of can be raised for the first time on appeal,

we are still required to conduct a harm analysis under Rule 44.2(b) of the Texas Rules

of Appellate Procedure.      That is, we must disregard the error if it did not affect

Appellant’s substantial rights. TEX. R. APP. P. 44.2(b). Reversal is required for non-

constitutional error if we have grave doubt that the result of the proceeding was free

from the substantial effect of the error.        Burnett v. State, 88 S.W.3d 633, 637

(Tex.Crim.App. 2002). That is, “if the reviewing court has a ‘grave doubt’ that the result

was free from substantial influence of the error, then it must treat the error as if it did.”

Id. Accordingly, in a case of grave doubt as to harmlessness, reversible harm must be

assumed. Id. at 637-38 (citing O’Neal v. McAninch, 513 U.S. 432, 436, 115 S.Ct. 992,

130 L.Ed.2d 947 (1995)).


        Given the evidence of Appellant’s substantial compliance with the terms and

conditions of community supervision for eight and one-half years and his payment of a

vast majority of the fine imposed, and considering the likelihood that the trial court

misconstrued the applicable penalty group for the controlled substance in question and

the appropriate range of punishment, we cannot say that the trial court would not have

assessed a lesser sentence had the full range of punishment been properly understood

and considered. Having grave doubts the punishment assessed was free from the

substantial influence of the error in this case, we find the error to be reversible as to

punishment only.


        Issue one is sustained. Our disposition of issue one pretermits consideration of

Appellant’s second issue as presented in his original and reply briefs. TEX. R. APP. P.

47.1.

                                             9
                               REFORMATION OF JUDGMENT


       This Court has the power to modify the judgment of the court below to make the

record speak the truth when we have the necessary information to do so. TEX. R. APP.

P. 43.2(b). Bigley v. State, 865 S.W.2d 26, 27-28 (Tex.Crim.App. 1993). Appellate

courts have the power to reform whatever the trial court could have corrected by a

judgment nunc pro tunc where the evidence necessary to correct the judgment appears

in the record. Ashberry v. State, 813 S.W.2d 526, 529 (Tex.App.--Dallas 1991, pet.

ref'd). The power to reform a judgment is "not dependent upon the request of any party,

nor does it turn on the question of whether a party has or has not objected in the trial

court." Id. at 529-30.


       The parties agree and the record demonstrates that Appellant was charged

under section 481.116(e) of the Texas Health and Safety Code, not section 481.115,

and that the controlled substance in question was a Penalty Group 2 substance.

Because the judgment incorrectly reflects the statute and offense committed, we find

the judgment should be modified to correct this error.


                                       CONCLUSION


       Thus, we modify the trial court's judgment under "Statute for Offense" to reflect "§

481.116(e) Health and Safety Code" in the summary portion of the judgment. We also

modify the judgment under “Offense for which Defendant Convicted” to reflect

“POSSESSION CONTROLLED SUBSTANCE PG 2 >400 GRAMS” in the summary

portion of the judgment.     As modified, that portion of the judgment pertaining to



                                            10
Appellant’s conviction is affirmed; the portion of the judgment pertaining to punishment

is reversed and the cause is remanded to the trial court for a new punishment hearing.



                                               Patrick A. Pirtle
                                                   Justice


Do not publish.




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