                           NUMBER 13-11-00059-CR

                             COURT OF APPEALS

                     THIRTEENTH DISTRICT OF TEXAS

                        CORPUS CHRISTI - EDINBURG


ROBERTO GONZALEZ A/K/A ROBERT
REYNA GONZALEZ,                                                         Appellant,

                                         v.

THE STATE OF TEXAS,                                                       Appellee.


                  On appeal from the 156th District Court
                         of Bee County, Texas.


                           MEMORANDUM OPINION

    Before Chief Justice Valdez and Justices Rodriguez and Garza
              Memorandum Opinion by Chief Justice Valdez

      Appellant, Roberto Gonzalez a/k/a Robert Reyna Gonzalez, pursuant to a plea

agreement with the State, pleaded guilty to one count of attempted aggravated assault

and one count of attempted indecency with a child by contact. See TEX. PENAL CODE

ANN. § 15.01 (West 2003), §§ 21.11, 22.021 (West Supp. 2010).          The trial court

deferred adjudication and placed Gonzalez on community supervision for a period of ten

years. Subsequently, the trial court revoked Gonzalez’s community supervision and
imposed sentences of five years’ confinement for each count.            By three issues,

Gonzalez contends: (1) the trial court should have, sua sponte, withdrawn Gonzalez’s

plea of “true” to the State’s allegations at the revocation hearing; (2) the trial court

violated his due process rights by cumulating the sentences in the judgment; and (3) the

trial court lacked the statutory authority to cumulate the sentences in this case. We

modify and affirm the judgment as modified.

                                   I.     BACKGROUND

       On August 31, 2010, the State filed a motion to revoke Gonzalez’s community

supervision alleging, among other things, that Gonzalez had violated the terms and

conditions of community supervision by failing to complete sex offender treatment. At

the revocation hearing, the trial court informed Gonzalez that if it determined that he had

violated the terms of community supervision, the trial court could revoke his community

supervision, and that the range of punishment was two to twenty years’ confinement for

the attempted aggravated assault and two to ten years for the attempted indecency with

a child by contact.   Gonzalez stated that he understood the range of punishment.

Gonzalez also stated that he understood the terms of his community supervision and

that the State had filed a motion to revoke the community supervision.           Gonzalez

informed the trial court that he understood that the State had filed the motion to revoke

because it claimed that he was “[n]ot going to class.”

       Gonzalez then pleaded “true” to the State’s allegations that he had failed to

attend and complete the Sex Offender Therapy Program.            The trial court admitted

State’s Exhibit 2, a stipulation of evidence signed by Gonzalez judicially confessing to

“All facts and allegations regarding the violations of [his] community supervision” as

described by Keane Monroe, a probation officer, in an affidavit attached as “Exhibit A” to
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his stipulations.1 In the affidavit, Monroe stated that Gonzalez had failed to attend and

complete the Sex Offender Therapy Program as ordered by the terms of his community

supervision. Gonzalez told the trial court that his attorney explained the stipulation of

evidence to him and that he understood that he was admitting that he did “something

wrong.”     The trial court then accepted Gonzalez’s plea of “true” and found the

allegations to be true.

        The trial court heard evidence from Monroe that Gonzalez had missed eleven

sessions of therapy. However, on two of those occasions, Gonzalez showed up for his

therapy session, but could not pay and was turned away. After hearing the evidence,

the trial court revoked Gonzalez’s community supervision and orally pronounced a

sentence of two five-year terms to run concurrently. The judgment, however, states that

the terms are to run consecutively. This appeal ensued.

                               II.     WITHDRAWAL OF PLEA OF TRUE

        We review the trial court’s decision to revoke a defendant’s community

supervision under an abuse of discretion standard. Rickels v. State, 202 S.W.3d 759,

763 (Tex. Crim. App. 2006); Herrera v. State, 951 S.W.2d 197, 199 (Tex. App.—Corpus

Christi 1997, no pet.). We review the evidence presented at the revocation hearing in

the light most favorable to the trial court’s ruling. Jones v. State, 112 S.W.3d 266, 268

(Tex. App.—Corpus Christi 2003, no pet.). A plea of “true” standing alone is sufficient to

support revocation of community supervision. Id.

        By his first issue, Gonzalez contends that the trial court should have sua sponte

withdrawn his plea of true. Gonzalez argues that he did not fail to attend his therapy


        1
         Gonzalez stated in his stipulation of evidence that Monroe’s affidavit is “marked as Exhibit A and
incorporated herein and made a part hereof for all purposes.”

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sessions because he attended “over 60 out of approximately 75 therapy sessions,” he

was “refused treatment on two occasions because of his inability to pay for the

treatments,” and he did not own a car. Gonzalez reasons that it is “unjust” to find that

he violated the terms of community supervision under these circumstances.

        We are not persuaded by Gonzalez’s arguments. Here, Gonzalez pleaded “true”

to failing to attend and complete the sex offender therapy sessions. Gonzalez’s plea of

true standing alone was sufficient to support the trial court’s finding that Gonzalez had

violated the terms and conditions of community supervision. See Jones, 112 S.W.3d at

268. Gonzalez cites no authority, and we find none, requiring a trial court to sua sponte

withdraw a plea of “true” at a revocation hearing. 2 See Gutierrez v. State, 108 S.W.3d

304, 309-10 (Tex. Crim. App. 2003) (en banc) (setting out that the legislature has not

authorized in the context of revocation proceedings a right for a defendant to withdraw a

plea of “true”); Moses v. State, 590 S.W.2d 469, 470 (Tex. Crim. App. 1979) (“[T]here is

no duty upon a trial court to withdraw a plea of true in a revocation of probation

proceeding even if a probationer presents a defensive issue.”). Moreover, although

Monroe acknowledged that Gonzalez was refused treatment for two therapy sessions

due to lack of payment, Monroe testified that Gonzalez failed to attend nine therapy

sessions.3



        2
           Gonzalez claims that Moon v. State, 572 S.W.2d 681, 681 (Tex. Crim. App. 1978), stands for
the proposition that before accepting a plea of “true” at a revocation hearing, the trial court must “consider
the evidence submitted” and “may find the State’s allegations to be not true,” despite the defendant’s plea
of “true.” Moon does not pertain to a revocation hearing or a defendant’s plea of true. Instead, the court
in Moon “held that when the defendant waives a jury trial and pleads guilty to the trial court, the trial court
has no duty to withdraw the plea sua sponte even if the evidence raises defensive issues.” Cole v. State,
578 S.W.2d 127, 128 (Tex. Crim. App. 1979). Therefore, Moon is inapplicable to our analysis.
        3
         At the revocation hearing, defense counsel, in closing argument, stated that Gonzalez had
missed nine sessions.

                                                      4
       Therefore, viewing the evidence in the light most favorable to the trial court’s

ruling, we conclude that the trial court did not abuse its discretion by not sua sponte

withdrawing Gonzalez’s plea of true and by finding that Gonzalez violated the terms of

community supervision by failing to attend the sex offender therapy sessions. See

Herrera, 951 S.W.2d at 199 (“[A] single violation of a condition of community

supervision is sufficient to support the trial court’s decision to revoke.”). We overrule

Gonzalez’s first issue.

                             III.   CUMULATIVE SENTENCES

       By his second and third issues, which Gonzalez has briefed as one, he contends

that the trial court violated his “right to due process in issuing a written judgment

cumulating the sentences in this case when concurrent sentences had been orally

pronounced in court,” and “[t]he trial court lacked any statutory authority to cumulate the

sentences in this case.” The State concedes that Gonzalez’s second and third issues

are meritorious and requests that we modify the judgment.

       “A trial court’s pronouncement of sentence is oral, while the written judgment,

including   the   sentence   assessed,    is   merely   the   embodiment    of   that   oral

pronouncement.”     Ex parte Madding, 70 S.W.3d 131, 135 (Tex. Crim. App. 2002).

Therefore, when the oral pronouncement of sentence and the written judgment vary, the

oral pronouncement controls. Coffey v. State, 979 S.W.2d 326, 328 (Tex. Crim. App.

1998). A trial court that wishes to impose cumulative sentences must make such an

order at the time and place that sentence is orally pronounced. Madding, 70 S.W.3d at

136; Ex parte Vasquez, 712 S.W.2d 754, 755 (Tex. Crim. App. 1986). “A trial court

does not have discretion or the statutory authority to orally pronounce one sentence in



                                               5
front of the defendant, but enter a different sentence in its written judgment, outside the

defendant’s presence.” Madding, 70 S.W.3d at 136.

       The record reflects that at the revocation hearing, the trial court orally

pronounced that Gonzalez’s sentences of five years for each count would run

concurrently. However, the written judgment states that the two sentences were to run

consecutively. We conclude that Gonzalez’s due process rights were violated because

the trial court did not have the statutory authority or discretion to orally pronounce one

sentence and enter a different sentence in its written judgment. See id. at 136-37

(concluding that the judgment cumulating the sentences after oral pronouncement that

sentences would run concurrent violated the appellant’s right to due process and

modifying judgment to reflect that the sentences run concurrently).           We sustain

Gonzalez’s second and third issues. See id. Accordingly, we modify the judgment to

reflect that the sentences run concurrently. See TEX. R. APP. P. 43.2(b); Madding, 70

S.W.3d at 136-37; see also French v. State, 830 S.W.2d 607, 609 (Tex. Crim. App.

1992) (“[A]n appellate court has authority to reform a judgment to include an affirmative

finding to make the record speak the truth when the matter has been called to its

attention by any source.”).

                                   IV.    CONCLUSION

       We affirm the judgment as modified.

                                                       _____________________
                                                       ROGELIO VALDEZ
                                                       Chief Justice

Do not Publish.
TEX. R. APP. P. 47.2(b)
Delivered and filed the
21st day of July, 2011.

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