Clara Simmons Johnson v. State

Johnson v. State IN THE COURT OF APPEALS, THIRD DISTRICT OF TEXAS, AT AUSTIN NO. 3-90-162-CR CLARA SIMMONS JOHNSON, APPELLANT vs. THE STATE OF TEXAS, APPELLEE FROM THE DISTRICT COURT OF TOM GREEN COUNTY, 51ST JUDICIAL DISTRICT NO. CR89-0292-A, HONORABLE JOHN E. SUTTON, JUDGE PER CURIAM Following a plea of guilty, the trial court found appellant guilty of delivering less than 28 grams of cocaine. 1983 Tex. Gen. Laws, ch. 425, § 6 [now codified as Tex. Health & Safety Code Ann. § 481.112 (Supp. 1991)]. The court assessed punishment at imprisonment for 79 years and a $5,000 fine. In point of error one, appellant argues that the trial court's judgment is invalid because it erroneously recites (1) that appellant pleaded not guilty to the offense in paragraph one of the indictment and (2) that findings of true were entered to the enhancement allegations in paragraphs two and three of the indictment. The record shows that, at trial, appellant changed her initial plea of not guilty to one of guilty. The trial court then admonished appellant as to the consequences of her plea. The record also shows that, at the punishment hearing, the State waived the two prior convictions alleged for enhancement and that no plea was entered to them. The trial court announced that it would "proceed with punishment as a first degree felony." An appellate court may reform the trial court's judgment. Tex. R. App. P. Ann. 80(b) (Supp. 1990). Because this Court has the necessary information before it, we reform the judgment to reflect that appellant pleaded guilty to the offense of delivery of less than 28 grams of cocaine and that no plea or finding was made on enhancement. Joles v. State, 563 S.W.d 619 (Tex. Cr. App. 1978); Vasquez v. State, 477 S.W.2d 629 (Tex. Cr. App. 1972). We overrule point one. In point of error two, appellant contends that the sentence of 79 years' confinement plus a $5,000 fine is excessive and constitutes cruel and unusual punishment. U.S. Const. amend. VIII; Tex. Const. Ann. art. I, § 13 (1984); Tex. Code Cr. P. Ann. art. 1.09 (1977). When the sentence assessed is within the limit prescribed by statute, the punishment is not cruel and unusual. Samuel v. State, 477 S.W.2d 611 (Tex. Cr. App. 1972); Burrows v. State, 143 S.W.2d 609 (Tex. Cr. App. 1940). Appellant's sentence fell within the range authorized for the offense. Tex. Pen. Code Ann. § 12.32 (Supp. 1991). We overrule point two. As reformed, the judgment of the trial court is affirmed. [Before Chief Justice Carroll, Justices Jones and Smith] Affirmed Filed: May 15, 1991 [Do Not Publish]