Reversed and Remanded and Opinion filed October 19, 2017.




                                      In The

                    Fourteenth Court of Appeals

                              NO. 14-16-00888-CR

                      MARIBEL SALDIVAR, Appellant
                                        V.
                      THE STATE OF TEXAS, Appellee

                   On Appeal from the 184th District Court
                           Harris County, Texas
                       Trial Court Cause No. 1476290

                                  OPINION

      On October 3, 2017, we withdrew an opinion in this case that had issued that
same day. Today, we issue this substitute opinion, without changing our prior
disposition.

      After appellant was stopped for a traffic violation, police discovered fifteen
packages hidden within her vehicle containing more than 14 kilograms of heroin and
cocaine. Appellant confessed to trafficking the drugs, which had a street value of
more than $1.4 million. Appellant told investigators that someone had convinced her
to smuggle the drugs into this country from Mexico in exchange for $12,000.

      Appellant was indicted for possessing at least 400 grams of heroin with the
intent to deliver. That charge was eventually reduced to possessing between 200 and
400 grams of heroin with the intent to deliver. Appellant pleaded guilty to the
reduced charge without an agreed recommendation as to punishment. The trial court
accepted appellant’s plea and assessed her punishment at twenty-five years’
imprisonment, without a fine.

      Appellant now raises three issues in this court. We address those issues in
reverse order because, if meritorious, her third issue would afford greater relief than
her second issue, and her second issue would afford greater relief than her first issue.

      Jurisdiction. Appellant contends that the trial court lacked jurisdiction to
adjudicate her case because the indictment was returned from a grand jury impaneled
by a different district court. We have already rejected this jurisdictional challenge in
another case, and we will do so again here. See Matthews v. State, No. 14-16-00913-
CR, — S.W.3d —, 2017 WL 3271195 (Tex. App.—Houston [14th Dist.] Aug. 1,
2017, pet. filed).

      A trial court is vested with jurisdiction once it is presented with an indictment.
See State v. Dotson, 224 S.W.3d 199, 204 (Tex. Crim. App. 2007). Presentment
occurs when the indictment is delivered by the grand jury to either “the judge or
clerk of the court.” Id. (citing Tex. Code Crim. Proc. art. 20.21).

      In counties with more than one district court, such as Harris County, where
this case originates, all of the district courts share the same district clerk. See Ex
parte Alexander, 861 S.W.2d 921, 922 (Tex. Crim. App. 1993) (“Since the district
clerk is the clerk of a specific county, he or she is the clerk of the court for all the


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district courts in that county.”), superseded by statute on other grounds as stated in
Ex parte Burgess, 152 S.W.3d 123, 124 (Tex. Crim. App. 2004). They also share the
same felony jurisdiction. See Tex. Code Crim. Proc. art. 4.05. This shared
administration allows the district judges to “adopt rules governing the filing and
numbering of cases, the assignment of cases for trial, and the distribution of the work
of the courts as in their discretion they consider necessary or desirable for the orderly
dispatch of the business of the courts.” See Tex. Gov’t Code § 24.024. Pursuant to
these rules, the district judges may agree to transfer a case from one district court to
another district court within the same county, even though the indictment was
returned by a grand jury impaneled by the originating district court. See Davis v.
State, 519 S.W.3d 251, 255 (Tex. App.—Houston [1st Dist.] 2017, pet. ref’d);
Henderson v. State, No. 01-16-00729-CR, — S.W.3d —, 2017 WL 3526714, at *2
(Tex. App.—Houston [1st Dist.] Aug. 17, 2017, pet. filed).

      In appellant’s case, the indictment was returned by the grand jury for the
232nd District Court of Harris County. The indictment bears the file stamp of the
Harris County District Clerk, which evidences its presentment. See Dotson, 224
S.W.3d at 204. The indictment also shows that the Harris County District Clerk filed
the case with the 184th District Court of Harris County, which entered the judgment
under review in this appeal. On these facts, we conclude that there is no jurisdictional
defect. See Matthews, 2017 WL 3271195, at *2 (holding that the 182nd District
Court of Harris County was vested with jurisdiction after being presented with an
indictment returned by the grand jury impaneled by the 179th District Court of
Harris County and filed with the Harris County District Clerk).

      We overrule this issue.

      Voluntariness of Guilty Plea. The judge advised appellant at her plea hearing
that the State had agreed to reduce the charged offense. The judge then admonished

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appellant that if she pleaded guilty to the reduced charge, she would be sentenced to
a term of no less than ten years’ imprisonment and she would face a fine of no more
than $100,000. Appellant pleaded guilty, stating that she understood the
consequences of her plea, and the judge reset the case for a sentencing hearing.

       Appellant’s plea paperwork reflected the State’s agreement to reduce the
charged offense, but the paperwork contained a mistake. The prosecutor made a
handwritten notation that the State “moves to reduce to ten to life”—which is the
punishment range for possessing between 200 and 400 grams of heroin with the
intent to deliver—but the prosecutor did not correct the typed portion of the plea
paperwork stating that the offense was possessing at least 400 grams of heroin with
the intent to deliver.

       Months later, when appellant appeared for her sentencing, the judge noticed
that the written admonishments contained incorrect information about the applicable
punishment range. The admonishments said that appellant would be sentenced to a
term of no less than fifteen years, which is the applicable punishment range for the
greater offense with which appellant had originally been charged.

       The prosecutor agreed that the admonishments contained a mistake, but the
discussion that followed suggested that there was still uncertainty as to the correct
offense and its applicable punishment range. The prosecutor said at one point that
the charge had been reduced to possession of between 4 and 200 grams of heroin
with the intent to deliver. Later, the prosecutor said that he had misspoke, and that
the reduced charge had only been for possession of between 200 and 400 grams of
heroin with the intent to deliver, which was the same charge to which appellant had
pleaded guilty at the previous hearing. The judge briefly recessed the proceeding,
explaining that she wanted the parties to “figure this out, because we want to make
sure we have the punishment range right before we go any further.”

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         After the recess, the prosecutor repeated that the charge was for possession of
between 200 and 400 grams of heroin with the intent to deliver, which carried a
punishment of range of no less than ten years’ imprisonment, with a fine of up to
$100,000. The judge decided to correct appellant’s plea paperwork and take her plea
again, stating that appellant had not been admonished properly at the earlier plea
hearing.

         As she was administering the plea, the judge noticed that the written
admonishments still contained a mistake because one part said that appellant would
be sentenced to no less than ten years’ imprisonment and another part said that she
would be sentenced to no less than fifteen years’ imprisonment. The judge crossed
out the offending language, and appellant initialed next to the cross-out.

         The rest of the proceeding was regular. The judge repeated the correct offense
and the correct punishment range, and appellant pleaded guilty, saying that she
understood the consequences of her plea.

         Appellant now contends that her plea was involuntary because the
proceedings evidenced “persistent confusion” about the applicable punishment
range.

         Either orally or in writing, the trial court must admonish the defendant of the
range of punishment attached to the offense. See Tex. Code Crim. Proc. art.
26.13(a)(1), (d). Substantial compliance is sufficient to discharge this obligation,
unless the defendant affirmatively shows that she was not aware of the consequences
of her plea and that she was misled or harmed by the admonishment of the court. Id.
art. 26.13(c).

         A finding that the defendant was duly admonished creates a prima facie
showing that the guilty plea was entered knowingly and voluntarily. See Martinez v.


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State, 981 S.W.2d 195, 197 (Tex. Crim. App. 1998) (per curiam). The defendant
may still claim that her plea was not voluntary, but the burden shifts to her to
demonstrate that she did not fully understand the consequences of the plea such that
she suffered harm. Id.

      The record here shows that there was some confusion regarding the applicable
punishment range, but the judge fixed that problem. At the sentencing hearing, the
plea paperwork was revised to say that appellant had pleaded guilty to a reduced
charge of possessing between 200 and 400 grams of heroin with the intent to deliver.
Appellant, her defense attorney, the prosecutor, and the judge initialed next to this
revision.

      The written admonishments were also revised to say the following: “First
degree felony, a term no[t] to exceed 99 years or LIFE in the Institutional Division
of the Texas Department of Criminal Justice and not less than 10 years in the Texas
Department of Criminal Justice and a fine up to $100,000.” Both appellant and her
defense attorney initialed next to these correct admonishments. The judge also gave
the correct oral admonishments when she took appellant’s plea for the second time.

      At no point was appellant ever orally admonished of an incorrect punishment
range. The judge was consistent between the plea hearing and the sentencing
hearing, stating that if appellant pleaded guilty to the reduced charge, then she would
be sentenced to a minimum of ten years’ imprisonment. The plea paperwork and the
written admonishments contained incorrect information about the offense and the
minimum term of punishment, but that information was corrected by the judge and
the corrections were initialed by appellant.

      We conclude that the judge substantially complied with her obligation to duly
admonish appellant of the applicable range of punishment, meaning that there is a
prima facie showing that appellant entered her plea knowingly and voluntarily. The
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burden accordingly shifted to appellant to show that she did not fully understand the
consequences of her plea and that she suffered harm. Id.

      Appellant claims that she “could not possibly have understood the charges
against her” because of the “persistent confusion” about the applicable punishment
range. The record does not support such a claim. Every oral admonishment that
appellant received stated that if she pleaded guilty, then she would be sentenced to
a minimum term of ten years’ imprisonment. Appellant consistently stated on the
record that she understood what that meant. She never voiced confusion about the
possibility of a higher minimum term of imprisonment.

      And even if we accepted appellant’s claim that she were confused about the
applicable range of punishment, appellant cannot show that her plea would have
been different had she not been confused because the trial court still sentenced her
to a term of imprisonment that was within the maximum range of punishment for
both offenses discussed during the proceedings. See Robinson v. State, 739 S.W.2d
795, 801 (Tex. Crim. App. 1987) (incorrect punishment admonishment was harmless
where the sentence assessed was within both the actual and stated maximum for the
offense).

      We overrule this issue.

      Fine. Appellant contends that the judgment is void because the judge forgot
to assess a fine. The State agrees that a fine should have been assessed.

      When a person commits an offense by knowingly possessing between 200 and
400 grams of heroin, the offense is “punishable by imprisonment in the Texas
Department of Criminal Justice for life or for a term of not more than 99 years or
less than 10 years, and a fine not to exceed $100,000.” See Tex. Health & Safety
Code § 481.112(e). Though the amount is discretionary, the fine itself is mandatory,


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and the trial court must orally pronounce it at sentencing. See Ibarra v. State, 177
S.W.3d 282, 284 (Tex. App.—Houston [1st Dist.] 2005, no pet.). If the trial court
does not assess a fine, the judgment is void for being outside the statutory range of
punishment. See Lombardo v. State, 524 S.W.3d 808, 817 (Tex. App.—Houston
[14th Dist.] 2017, no pet.).

      The judgment here is void because it does not include a fine. Appellant argues
in her original brief that the appropriate remedy in this situation is to remand for a
new hearing on punishment, but in a subsequent letter brief, she amends her request
for relief, asking for her guilty plea to be set aside entirely. In support of this greater
relief, appellant relies on Thomas v. State, 516 S.W.3d 498 (Tex. Crim. App. 2017),
a case that was decided shortly after she filed her original brief. The State, in a
cursory response letter, agrees with appellant that the guilty plea should be set aside.

      A concession from the State is important to the disposition of an appeal, but
we are not bound by it. See Saldano v. State, 70 S.W.3d 873, 884 (Tex. Crim. App.
2002). After performing our own independent review of the case, we cannot agree
that Thomas compels the result that the parties have suggested.

      Thomas involved a very different set of facts. There, the State and the
defendant negotiated a reduction in charges from a third-degree felony for engaging
in organized criminal activity to a state-jail felony for theft. See Thomas, 516 S.W.3d
at 500. The written and oral admonishments reflected a mutual understanding that
the defendant’s sentence would be enhanced by prior convictions, meaning that he
would face the punishment range applicable to a second-degree felony, or between
two and twenty years’ imprisonment. Id. (written admonishments); id. at 504 (oral
admonishments). However, the parties’ mutual understanding was mistaken. As a
matter of law, certain of the defendant’s prior convictions could not be used to
enhance his sentence to the punishment range applicable to a second-degree felony.

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Id. at 500. No one recognized this error though, not even the judge, who sentenced
the defendant to twenty years’ imprisonment. Id.

      In his direct appeal, the defendant challenged his sentence for being outside
the range permitted by law. Id. The court of appeals sustained this point of error, and
in its judgment, the court upheld the defendant’s conviction for a state-jail felony
and remanded for a new hearing on punishment only. Id. The State filed a motion
for rehearing, objecting to this outcome. Id. The State argued that the enhanced
punishment range was material to the negotiated plea, and if that enhanced
punishment range were not available, then the State would not have entered into the
plea agreement at all. Id. The State accordingly requested that the court of appeals
set aside the guilty plea and return the parties to their original positions. Id. at 501.
The court of appeals denied the State’s motion, and then the Court of Criminal
Appeals exercised discretionary review. Id.

      Considering only the remedy chosen by the intermediate court of appeals, the
Court of Criminal Appeals began its analysis by observing that a plea bargain is a
contract “at its core.” Id. The Court then recognized that contract-law principles can
still be invoked if a judgment following a plea bargain is successfully challenged:
“When a defendant, who has entered a negotiated plea of guilty, challenges the
conviction and is successful, the appropriate remedy is specific performance of the
plea, if possible, or, if not, withdrawal of the plea, with both parties, including the
State, returned to their original positions.” Id. at 502–03 (citing Shannon v. State,
708 S.W.2d 850 (Tex. Crim. App. 1986)).

      Because the defendant had successfully challenged his judgment, the Court
said that “the focus in the instant case is upon whether the correct remedy under
these circumstances is specific performance of the plea agreement or setting aside
the appellant’s guilty plea.” Id. at 503. The Court then determined that specific

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performance was not possible because the plea could not be enforced as the parties
had mutually intended—i.e., with appellant facing a punishment term applicable to
a second-degree felony. Id. The Court also reasoned that a contrary outcome would
result in an undeserved windfall for the defendant, because the State had agreed to
forgo a prosecution of a third-degree felony, which also carried a greater punishment
range than the state-jail theft. Id. at 503–04.

      Here, unlike in Thomas, when appellant finally entered a plea of guilty, the
parties did not make a mutual mistake of law regarding the applicable range of
punishment. As we explained above, appellant received written and oral
admonishments correctly advising her that, if she pleaded guilty, she would face a
term of imprisonment of no less than ten years and a mandatory fine of up to
$100,000. The trial court’s failure to assess a fine may render the judgment void, but
that does not mean that the plea cannot be enforced as the parties had originally
contemplated. We conclude that this is a case where specific performance of the plea
is possible, and so we uphold the conviction and remand for a new hearing on
punishment only. See Tex. Code Crim. Proc. art. 44.29(b); Lombardo, 524 S.W.3d
at 817.

      Conclusion. The judgment is reversed and the case is remanded for a new
punishment hearing consistent with this opinion.




                                         /s/      Tracy Christopher
                                                  Justice



Panel consists of Justices Christopher, Brown, and Wise.
Publish — Tex. R. App. P. 47.2(b).

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