In The
Court of Appeals
Seventh District of Texas at Amarillo
________________________
No. 07-13-00301-CR
________________________
DONELLE LUCILLE ESPINOZA, APPELLANT
V.
THE STATE OF TEXAS, APPELLEE
On Appeal from the 47th District Court
Potter County, Texas
Trial Court No. 65,812-A; Honorable Dan Schaap, Presiding
January 5, 2015
MEMORANDUM OPINION
Before CAMPBELL and HANCOCK and PIRTLE, JJ.
Appellant, Donnelle Lucille Espinoza, pled guilty in open court to theft enhanced
by two prior theft convictions1 and was sentenced to twenty months confinement and
assessed a $500 fine. On appeal, Appellant asserts (1) the trial court abused its
discretion in its sentencing and (2) her plea was involuntary because the trial court did
not properly admonish Appellant of the applicable sentence range. We affirm.
1
See TEX. PENAL CODE ANN. § 31.03(e)(4)(D) (West Supp. 2014). An offense under this section
is a state jail felony.
ISSUE ONE
Appellant asserts the trial court abused its discretion by sentencing her to twenty
months confinement because she had successfully completed three years of community
supervision in connection with a prior crime, maintained steady employment and was
active in her church and family since 2003. Her sentence is within the applicable
punishment range2 and neither we nor her attorney were able to find any case law to
support her assertion.
At the sentencing proceeding, the State presented a videotape showing
Appellant committing the theft charged in the indictment. Appellant admitted she had an
extensive shoplifting record and had trouble stealing in the past. She admitted stealing
and later selling contraband for cash while she was a home health nurse. On cross-
examination, Appellant admitted to committing other crimes involving theft in addition to
the theft for which she was being sentenced. Having considered all the evidence
offered at the sentencing proceeding by Appellant and the State, we cannot say the trial
court committed any error in assessing Appellant’s sentence.
ISSUE TWO
Appellant next asserts her plea was involuntary because, during the sentencing
proceeding, the trial court misstated that “the potential range of punishment [was]
anywhere between 108 days to 2 years in a state jail facility.” As stated earlier, no one
disputes that the offense was punishable by confinement in a state jail for any term of
2
No one disputes that the correct range of punishment was not more than two years but not less
than 180 days. See TEX. PENAL CODE ANN. §§ 12.35, 31.03(e)(4)(D) (West Supp. 2014).
2
not more than two years or less than 180 days. See TEX. PENAL CODE ANN. §§ 12.35,
31.03(e)(4)(D) (West Supp. 2014).
No plea of guilty shall be accepted by the court unless it appears the defendant is
mentally competent and the plea is free and voluntary. See TEX. CODE CRIM. PROC.
ANN. art. 26.13(b) (West Supp. 2014). In admonishing the defendant of her possible
sentence for the crime committed, substantial compliance by the court is sufficient
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. at
26.13(c).
Although the record reflects the trial court may have delivered an inaccurate
admonishment, Appellant’s actual sentence lies within both the actual and misstated
minimum and, as such, meets the substantial compliance requirement. See Martinez v.
State, 981 S.W.2d 195, 197 (Tex. Crim. App. 1998) (citing Robinson v. State, 739
S.W.2d 195, 197 (Tex. Crim. App. 1998)). Further, the record reflects that, in the
various plea documents executed by Appellant and her attorney, she was admonished
of the correct punishment range, understood the written admonishment and was aware
of the consequences of her plea, and her plea was voluntary. Importantly, Appellant
fails to come forward with any evidence or citation to the record indicating that she was
not aware of the consequences of her plea and was misled or harmed by the trial
court’s incorrect admonishment. See Martinez, 981 S.W.2d at 197. Accordingly,
Appellant’s second issue is overruled.
3
CONCLUSION
The trial court’s judgment is affirmed.
Patrick A. Pirtle
Justice
Do not publish.
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