Carlos Zepeda Gonzales v. the State of Texas

Fourth Court of Appeals
San Antonio, Texas
MEMORANDUM OPINION

No. 04-24-00819-CR

Carlos Zepeda GONZALES,
Appellant

v.

The STATE of Texas,
Appellee

From the 454th Judicial District Court, Medina County, Texas
Trial Court No. 21-05-14059-CR
Honorable Daniel J. Kindred, Judge Presiding

Opinion by: H. Todd McCray, Justice
Dissenting Opinion by: Velia J. Meza, Justice

Sitting: Rebeca C. Martinez, Chief Justice
H. Todd McCray, Justice
Velia J. Meza, Justice

Delivered and Filed: April 22, 2026

AFFIRMED

Appellant Carlos Zepeda Gonzales appeals the judgment sentencing him to nine years in

prison for the offense of online solicitation of a minor. Gonzales complains that his sentence is

unconstitutional and that the trial court erred in making a “42A” finding and in failing to inquire

into his ability to pay before assessing costs. We affirm.
04-24-00819-CR

BACKGROUND

Gonzales was indicted for aggravated sexual assault of a child, indecency with a child by

contact, and online solicitation of a minor. Pursuant to a plea agreement, he pleaded nolo

contendere to the third-degree felony offense of online solicitation of a minor, and the remaining

charges were dismissed. The trial court placed Gonzales on deferred adjudication community

supervision for ten years.

The State later filed a motion to proceed with adjudication of guilt, alleging seven

violations of the conditions of community supervision. Gonzales pleaded true to all but one of the

alleged violations. The trial court accepted the pleas, found the admitted violations true, and reset

the case for a sentencing hearing following a presentence investigation. At the sentencing hearing,

after hearing testimony from both the complainant and the probation officer who completed the

presentence investigation, the trial court adjudicated Gonzales guilty and sentenced him to nine

years’ confinement in the Texas Department of Criminal Justice. The court also assessed a $5,000

fine.

ANALYSIS

I. Excessive Punishment

In his first issue, Gonzales contends his nine-year sentence and $5,000 fine constitutes

excessive and unreasonable punishment in violation of the Eighth Amendment. See U.S. CONST.

amend. VIII (“Excessive bail shall not be required, nor excessive fines imposed, nor cruel and

unusual punishment inflicted.”). In order to preserve such a claim for appellate review, the record

must demonstrate that the appellant presented a timely request, objection, or motion to the trial

court stating the specific grounds for the ruling desired. Rhodes v. State, 934 S.W.2d 113, 119-20

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(Tex. Crim. App. 1996); Trevino v. State, 676 S.W.3d 726, 730 (Tex. App.—Corpus Christi-

Edinburg 2023, no pet.); see TEX. R. APP. P. 33.1.

Gonzales made no objection regarding the disproportionality of his sentence in the trial

court, nor did he raise the issue by motion for new trial or other post-sentencing procedure.

Accordingly, he has forfeited this issue for appellate review. See Mercado v. State, 718 S.W.2d

291, 296 (Tex. Crim. App. 1986) (“As a general rule, an appellant may not assert error pertaining

to his sentence or punishment where he failed to object or otherwise raise such error in the trial

court.”); Noland v. State, 264 S.W.3d 144, 151 (Tex. App.—Houston [1st Dist.] 2007, pet. ref’d)

(“[I]n order to preserve for appellate review a complaint that a sentence is grossly disproportionate,

constituting cruel and unusual punishment, a defendant must present to the trial court a timely

request, objection, or motion stating the specific grounds for the ruling desired.”).

We note that even if the claim had been preserved, it would fail. A punishment assessed

within the statutory range is generally not excessive, cruel, or unusual. State v. Simpson, 488

S.W.3d 318, 323 (Tex. Crim. App. 2016); see Krumboltz v. State, 945 S.W.2d 176, 178 (Tex.

App.—San Antonio 1997, no pet.). Gonzales was convicted of online solicitation of a minor, a

third-degree felony. See TEX. PENAL CODE ANN. § 33.021. Such an offense carries a punishment

range of confinement for two to ten years and a fine not to exceed $10,000. See TEX. PENAL CODE

ANN.§ 12.34. The trial court sentenced Gonzales to nine years’ confinement and assessed a $5,000

fine, both within the statutory range.

Although a defendant may challenge a sentence as disproportionate even when it falls

within the statutory range, such challenges succeed only in the rare case in which the sentence is

grossly disproportionate to the offense. Simpson, 488 S.W.3d at 322-23. To determine whether a

sentence is grossly disproportionate to a particular crime, a court must judge the severity of the

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sentence in light of the harm caused to the victim, the culpability of the offender, and the offender’s

prior offenses. Id. at 323. A finding of gross disproportionality is “exceedingly rare” in light of the

trial court’s virtually “unfettered” discretion to impose punishment within the prescribed range. Ex

parte Chavez, 213 S.W.3d 320, 323-24 (Tex. Crim. App. 2006).

Texas courts addressing the offense of online solicitation of a minor have rejected similar

disproportionality challenges. For example, in Killian v. State, the court affirmed an eight-year

sentence for online solicitation of a minor, concluding the punishment was not cruel or unusual

because it fell within the statutory range and was not otherwise shown to be grossly

disproportionate. Killian v. State, No. 12-18-00195-CR, 2019 WL 2458996, at *2 (Tex. App.—

Tyler May 31, 2019, no pet.) (mem. op., not designated for publication). And notably, in Gutierrez

v. State, the court rejected a disproportionality challenge to a life sentence imposed for online

solicitation of a minor after noting the trial court’s discretion to consider the appellant’s criminal

history. Gutierrez v. State, No. 05-23-00683-CR, 2024 WL 5066082, at *6 (Tex. App.—Dallas

Dec. 11, 2024, no pet.) (mem. op., not designated for publication) (noting the “sentence may have

been harsh, but it was not unconstitutional”).

Similarly, Gonzales has not demonstrated that his sentence is excessive. The record reflects

that Gonzales received the benefit of deferred adjudication community supervision following his

original plea. After the State moved to adjudicate, Gonzales pleaded true to multiple violations of

the conditions of that supervision. At the sentencing hearing, the complainant testified regarding

the ongoing trauma Gonzales’s actions have caused her. A probation officer further testified

regarding Gonzales’s failure to cooperate with the probation office and his lack of remorse. Finally,

the presentence investigation reveals sustained illegal drug use and at least twenty previous arrests,

many of them for violent offenses. Under these circumstances, the trial court was well within its

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discretion to impose a sentence on the high end of the statutory range of punishment. Accordingly,

had Gonzales’s complaint been preserved, we would not find the sentence disproportionate to the

offense committed. Gonzales’s first issue is overruled.

II. “42A” Finding

In his second issue, Gonzales contends the trial court improperly imposed a “42A” finding

at sentencing, thus restricting his access to parole eligibility. Following the trial court’s oral

pronouncement of sentence, the State requested that the court:

. . . make a finding under 42A, formerly 3G, that this is a 3G offense . . . for the
judgment.

The trial court responded:

Right. If . . . that’s what it is, which . . . I’m aware that it is, then . . . it will be a
finding under . . . Section 12.42[a]?

The State clarified, “42A formerly 3G,” and the court replied:

Yeah, formerly 3G. All right, and … that is just the sentencing considerations, Mr.
Gonzales.

This exchange is ambiguous. The State’s request for a finding appears to reference article

42A.054(a) of the Code of Criminal Procedure, while the trial court initially referenced Penal Code

section 12.42(a), which governs repeat offender punishment enhancements. See TEX. CODE CRIM.

PROC. art. 42A.054(a); TEX. PENAL CODE ANN. § 12.42(a). After the State clarified its reference,

the trial court indicated that the matter concerned only “sentencing considerations.” Nevertheless,

the court did not clearly announce any formal finding. The written judgment likewise contains no

article 42A.054 finding or any other language that would restrict Gonzales’s parole eligibility.

When a conflict exists between the oral pronouncement and the written judgment, the oral

pronouncement controls, and an appellate court may reform the judgment to conform to what

actually occurred in open court. Ex parte Madding, 70 S.W.3d 131, 135 (Tex. Crim. App. 2002).

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04-24-00819-CR

However, that principle applies only when there is a discrepancy requiring correction. Here, the

trial court’s remark regarding the finding followed the pronouncement of sentence and did not alter

the punishment assessed. Because the written judgment contains no article 42A.054 finding and

the trial court did not clearly announce one, there is no conflict requiring correction, nothing to

change or delete, and no restriction from which Gonzales can obtain relief. See TEX. R. APP. P.

44.2(b). Accordingly, Gonzales’s second issue is overruled.

III. Ability to Pay Inquiry

In his third issue, Gonzales contends the trial court erred by assessing court costs without

conducting an ability to pay inquiry on the record as required by Article 42.15(a-1) of the Texas

Code of Criminal Procedure. Article 42.15(a-1) directs the trial court to inquire on the record

whether the defendant has sufficient resources to immediately pay fines and costs and to consider

statutory alternatives if the defendant cannot. TEX. CODE CRIM. PROC. ANN. art. 42.15(a-1).

Although the statute uses mandatory language, the Court of Criminal Appeals has held the

right to this inquiry is not fundamental to the adjudicatory process and is therefore forfeitable if

not properly asserted. Cruz v. State, 698 S.W.3d 265, 271 (Tex. Crim. App. 2024). Accordingly,

the statute’s mandatory language does not excuse preservation of error on appeal. Id.; see Proenza

v. State, 541 S.W.3d 786, 797 (Tex. Crim. App. 2017) (noting “responsibility of asserting

forfeitable rights belongs to the litigants . . . not the trial judge [and] such rights will be unavailable

on appeal if not urged at trial.”). Consistent with Cruz, this Court has repeatedly rejected the

contention that a trial court’s Article 42.15(a-1) obligation is reviewable absent an objection. See,

e.g., Mujica v. State, No. 04-24-00402-CR, 2025 WL 1063447, at *1–2 (Tex. App.—San Antonio

Apr. 9, 2025, pet. ref’d) (mem. op., not designated for publication); Villareal v. State, No. 04-24-

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00323-CR, 2025 WL 984592, at *1–2 (Tex. App.—San Antonio Apr. 2, 2025, no pet.) (mem. op.,

not designated for publication).

The record in this case reflects no request for an Article 42.15 inquiry and no objection to

the trial court’s assessment of the fine, court costs, or attorney’s fees. Nor did Appellant invoke

the statute or otherwise complain that the court failed to conduct the inquiry on the record. Because

Appellant did not timely raise this complaint in the trial court, the issue is not preserved for

appellate review. See TEX. R. APP. P. 33.1. Gonzales’s third issue is overruled.

The judgment of the trial court is affirmed. 1

H. Todd McCray, Justice

DO NOT PUBLISH

1
The dissent would remand this appeal to enable the trial court to clarify its findings regarding several errors in the
judgment. Most notably, the dissent takes issue with the fact that the trial court failed to include a sex-offender
registration requirement in the judgment. See TEX. CODE CRIM. PROC. art. 42.01 § 1(27). Neither party raises this
issue. Sex-offender registration is a statutory consequence of a conviction that arises by operation of law and is
therefore not part of the punishment that must be orally pronounced. See Ex parte Robinson, 116 S.W.3d 794, 798
(Tex. Crim. App. 2003) (concluding sex offender registration requirement is “non-punitive in both intent and effect”).
Because this is unassigned error and non-essential to the resolution of the appeal, we decline to address the issue or
modify the judgment on that basis. Appellate courts are obligated to resolve only those issues necessary to the
disposition of a case and to refrain from addressing matters that are either unnecessary to the judgment or not properly
presented for review. See TEX. R. APP. P. 44.2(b).

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Fourth Court of Appeals
San Antonio, Texas
DISSENTING OPINION
No. 04-24-00819-CR

Carlos Zepeda GONZALES,
Appellant

v.

The STATE of Texas,
Appellee

From the 454th Judicial District Court, Medina County, Texas
Trial Court No. 21-05-14059-CR
Honorable Daniel J. Kindred, Judge Presiding

Opinion by: H. Todd McCray, Justice
Dissenting Opinion by: Velia J. Meza, Justice

Sitting: Rebeca C. Martinez, Chief Justice
H. Todd McCray, Justice
Velia J. Meza, Justice

Delivered and Filed: April 22, 2026

I join the court’s judgment as to the ultimate disposition of the appellate issues. But I

respectfully dissent from the court’s decision because I would abate and remand to the trial court

to clarify its findings and, if necessary, reform its written judgment.

Too often, what a judge says in open court and what appears in the written judgment drift

apart. Under Texas law, a conviction for online solicitation of a minor is a reportable conviction

under Chapter 62 of the Code of Criminal Procedure, and the judgment must reflect that the
04-24-00819-CR

Chapter 62 registration requirement applies and state the victim’s age. TEX. CODE CRIM. PROC. art.

62.001(5)(J); id. art. 42.01, § 1(27). Yet current law does not require the trial court to orally

pronounce that registration finding in open court, even though the sentence itself must be

pronounced in the defendant’s presence. Id. art. 42.03, § 1(a). As this case shows, that mismatch

breeds uncertainty in a system that depends on transparent, on-the-record adjudications.

The Legislature is uniquely positioned to correct this gap. By amending the Code of

Criminal Procedure to align the oral-pronouncement requirements with the written-judgment

requirements, the Legislature could ensure that defendants, trial courts, and reviewing courts all

operate under a single, coherent set of rules. Clarifying when and how Chapter 62 findings must

be pronounced and incorporated into the judgment would reduce avoidable error, provide clearer

guidance to trial judges, and spare litigants and courts from recurring disputes over form rather

than substance.

The need for clarity is not merely procedural. Inaccuracies or inconsistencies between the

oral pronouncement and the written judgment can have real public-safety consequences: if a

judgment is incorrect or incomplete, the community may not receive accurate notice regarding the

status of an individual required to register as a sex offender. Agencies responsible for supervision

and notification rely on the face of the judgment and have no authority to rewrite it. A clear

statutory scheme that ties mandatory Chapter 62 findings to an on-the-record pronouncement

would help ensure that the information on which law-enforcement agencies and the public rely is

accurate, timely, and worthy of the confidence Texans place in the criminal justice system.

As the majority notes, an appellate court may reform a judgment to make the record speak

the truth, and we have a duty to do so whether or not either party requests a correction or preserves

the issue below. See, e.g., Thompson v. State, 108 S.W.3d 287, 290 (Tex. Crim. App. 2003); Ex

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parte Madding, 70 S.W.3d 131, 135 (Tex. Crim. App. 2002). That principle reflects a practical

reality: criminal judgments are typically prepared by clerks, seldom reviewed by the parties, and

often first examined only after the trial court has lost jurisdiction, when self-correction is no longer

possible. Within that context, our task is to ensure that the judgment accurately reflects what the

record shows and conforms to the governing law. See Madding, 70 S.W.3d at 136–37.

1 The written judgment conflicts with the oral pronouncement.

Gonzales was convicted of online solicitation of a minor. See TEX. PENAL CODE § 33.021.

The judgment of conviction includes a checkbox beside the statement: “Defendant is required to

register as a sex offender in accordance with Chapter 62, Tex. Code Crim. Proc.,” but that box is

left unchecked, even though the judgment recites for registration purposes that the victim was “15

years old.” Yet the trial court never advised Gonzales of his duty to register or made findings about

the victim’s age on the record.

As a reviewing court, our duty is to ensure that the judgment accurately reflects both the

law and the trial court’s oral pronouncement, even when the parties fail to raise the issue.

Thompson, 108 S.W.3d at 290; Coffey v. State, 979 S.W.2d 326, 328 (Tex. Crim. App. 1998). If

these were the only defects in the judgment, I would not write separately. But the revocation

hearing reveals additional errors and omissions that, in my view, warrant abating and remanding

to allow the trial court to clarify its rulings.

This case illustrates a systemic problem in how findings are handled at sentencing. Courts

have repeatedly held that sex-offender registration is not punishment and thus need not be orally

pronounced as part of the sentence. See Ex parte Robinson, 116 S.W.3d 794, 798 (Tex .Crim. App.

2003). Yet the judgment must still include Chapter 62 findings, which are often neither spoken nor

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reflected in a clear record. The result is a recurring gap between what the law demands and what

the trial court delivers. It is time to close that gap.

The oral-pronouncement rule should extend to Chapter 62 notifications—not because

registration is punitive, but because it is a mandatory legal consequence that must appear in the

judgment and should be conveyed to the defendant in open court. Requiring oral pronouncement

would promote accuracy, transparency, and meaningful appellate review. Cf. Columbus v. State,

No. 04-22-00619-CR, 2025 WL 1789182, at *1 (Tex. App.—San Antonio June 30, 2025, pet.

granted) (Valenzuela, J., concurring) (inviting the Court of Criminal Appeals of Texas to provide

clarity on when affirmative findings must be orally pronounced).

2 The conflict is irreconcilable.

At the sentencing hearing, the court orally pronounced a nine-year term of imprisonment,

a $5,000 fine, court costs of $1,110 (the written judgment reflects $50), attorney’s fees of $520

(omitted entirely from the judgment), and addressed credit for time served. When the State

requested “a finding under 42A, formerly 3G,” the court immediately responded, “Okay,” then,

“Right. If that’s what it is, which I’m aware that it is,” and later confirmed, “Yeah, formerly 3G,”

before telling the defendant, “That is just the sentencing considerations, Mr. Gonzales.” These

statements are not equivocal; they demonstrate that the trial court accepted the State’s request,

believed the finding applied, and orally imposed it.

Online solicitation of a minor has never been designated a 3g or 42A.054 offense. 1 See

TEX. CODE CRIM. PROC. art. 42A.054; TEX. PENAL CODE § 33.021. The defect here is not limited

1
Former article 42.12 § 3g(a)(1) (now article 42A.054) lists specific offenses that qualify as “3g” (now “aggravated”)
offenses, including murder, aggravated kidnapping, continuous sexual abuse, indecency with a child, sexual assault,
aggravated sexual assault, and aggravated robbery. See TEX. CODE CRIM. PROC. art 42A.054(a)(1).

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to whether Chapter 62 findings must be orally pronounced; it is that the court orally imposed an

unauthorized 42A.054 consequence while the written judgment omits that finding and fails clearly

to reflect the mandatory Chapter 62 consequences.

The written judgment displays unchecked boxes, inconsistent recitations, and omissions

that cannot be squared with the oral pronouncement, and the only affirmative finding the court

appeared to make on the record—the State’s request for a “3g” or 42A.054 finding—is legally

inapplicable to online solicitation of a minor and is absent from the written judgment. A judgment

cannot silently correct an unlawful oral pronouncement, nor can it omit a mandatory statutory

requirement simply because the parties failed to raise the issue. The oral pronouncement of the

sentence controls when it conflicts with the written judgment, and here the oral pronouncement

appears to be beyond the court’s authority, while the written judgment reflects neither what the

law requires nor what the court actually said. See Coffey, 979 S.W.2d at 328. Faced with an unclear

oral pronouncement and a conflicting written judgment, I do not believe we have a sound basis to

reform the judgment. See Thompson, 108 S.W.3d at 290.

Allowing these irreconcilable findings to stand—unexamined and uncorrected—

undermines the integrity of the sentencing process and leaves criminal defendants subject to

consequences the law does not permit. A judgment does not stop at the courthouse door. It is

transmitted to probation departments, parole authorities, classification units, jail administrators,

treatment providers, and every agency that relies on the accuracy of judicial findings to determine

a defendant’s status and obligations. Those agencies treat judicial findings as valid because they

have no authority to question them. As a former criminal district court judge, I know how far these

errors travel and how difficult they are to unwind once they leave the courtroom. That is why our

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role as a reviewing court is so critical: we must ensure that the judgment is lawful so that it does

not wreak irreversible damage.

Abating the appeal and allowing the trial court to withdraw the inapplicable findings and

to make any required statutory findings on the record is, in my view, the only way to ensure that

the judgment we review—and the judgment every downstream agency receives—is accurate,

lawful, and capable of supporting meaningful appellate review. Once the court makes the

necessary determinations—or declines to make findings it cannot lawfully make—we may

properly address the appellate issues. Because the majority chooses a different path, I respectfully

dissent.

Velia J. Meza, Justice

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