Ross, Bernard Kay ( 2015 )

PD-0062-15
PD-0062-15 COURT OF CRIMINAL APPEALS
AUSTIN, TEXAS
Transmitted 1/22/2015 9:00:49 AM
Accepted 1/28/2015 9:54:08 AM
ABEL ACOSTA
PD No. __________ CLERK
IN THE
COURT OF CRIMINAL APPEALS
OF TEXAS
BERNARD KAY ROSS,
APPELLANT
January 28, 2015 vs.
THE STATE OF TEXAS,
APPELLEE
Seeking discretionary review of an opinion of the Fifth District Court of Appeals
In Cause No. 05-14-00014-CR
On appeal from the 203rd Judicial District Court of Dallas County, Texas
In Cause No. F13-24874-P
STATE’S PETITION FOR DISCRETIONARY REVIEW
Counsel of Record:
SUSAN HAWK KAREN R. WISE
CRIMINAL DISTRICT ATTORNEY ASSISTANT DISTRICT ATTORNEY
DALLAS COUNTY, TEXAS STATE BAR NO. 21810200
FRANK CROWLEY COURTS BUILDING
133 N. RIVERFRONT BLVD., LB-19
DALLAS, TEXAS 75207-4399
(214) 653-3637
Attorneys for the State of Texas
TABLE OF CONTENTS
INDEX OF AUTHORITIES.................................................................................... iii
IDENTITY OF JUDGES, PARTIES, AND COUNSEL ........................................ iv
STATEMENT REGARDING ORAL ARGUMENT ...............................................1
STATEMENT OF THE CASE ..................................................................................1
STATEMENT OF PROCEDURAL HISTORY........................................................2
QUESTION PRESENTED FOR REVIEW ..............................................................2
ARGUMENT .............................................................................................................2
PRAYER ....................................................................................................................8
CERTIFICATE OF SERVICE ..................................................................................9
ii
INDEX OF AUTHORITIES
Cases
Beedy v. State,
194 S.W.3d 595 (Tex. App. – Houston [1st Dist.] 2006), aff’d on other grounds,
Beedy v. State, 250 S.W.3d 107 (Tex. Crim. App. 2008) .............................................. 6
McNew v. State,
608 S.W.2d 166 (Tex. Crim. App. 1978) ........................................................................ 6
Ex parte Garza,
192 S.W.3d 658 (Tex. App. – Corpus Christi 2006, no pet.) .................................. 6, 7, 8
Hurley v. State,
130 S.W.3d 501 (Tex. App. – Dallas 2004, no pet.) ........................................... 5, 6, 7, 8
Nicholas v. State,
56 S.W.3d 760 (Tex. App. – Houston [14th Dist.] 2001, pet. ref'd) ............................... 5
Ross v. State,
No. 05-14-00014-CR, 2014 Tex. App. LEXIS 13479 (Tex. App. – Dallas Dec. 17,
2014) (not designated for publication) ........................................................................ 2, 3
Statutes
Tex. Code Crim. Proc. Ann. art. 42.08(a) (West Supp. 2013) ............................................ 5
Rules
Tex. R. App. P. 66.3(a) ........................................................................................................ 3
iii
IDENTITY OF JUDGES, PARTIES AND COUNSEL
1. Judges: Hon. Teresa Hawthorne,
Presiding Judge of the 203rd Judicial
District Court of Dallas County
Hon. Lisa Bronchetti,
Dallas County Magistrate
2. Petitioner: The State of Texas
3. Counsel for Petitioner: Karen R. Wise, on appeal
Stephanie Nicole Mitchell, at trial
Kelly Benavides, at trial
Assistant District Attorneys
Dallas County, Texas
133 N. Riverfront Blvd., LB 19
Dallas, Texas 75207-4399
4. Respondent: Bernard Kay Ross
5. Counsel for Respondent: Riann C. Moore, on appeal
Public Defender’s Office
Dallas County, Texas
133 N. Riverfront Blvd., LB 2
Dallas, Texas 75207
Davey O. Lamb, at trial
P.O. Box 596244
Dallas, Texas 75359
iv
TO THE HONORABLE COURT OF CRIMINAL APPEALS:
The State of Texas submits this Petition for Discretionary Review of the
decision of the Court of Appeals for the Fifth District of Texas at Dallas,
modifying the trial court’s decision on Appellant’s deferred adjudication order,
which was appealed from the 203rd Judicial District Court of Dallas County, Texas,
in Trial Cause No. F13-24874-P (Appeal Cause No. 05-14-00014-CR).
STATEMENT REGARDING ORAL ARGUMENT
The issues raised in the State’s Petition for Discretionary Review are not
complex and the pertinent underlying facts are apparent in a small portion of the
record. Thus, the issues in this case can be decided on the briefs submitted by the
parties. The State does not request oral argument if this Petition for Discretionary
Review is granted, although the State will argue its case if this Honorable Court
desires.
STATEMENT OF THE CASE
Appellant pled guilty to robbery and was placed on deferred adjudication
community supervision for 10 years. (CR2: 15). The trial court ordered that
Appellant’s term of community supervision would be stacked onto his prison
sentence in his companion burglary case. (CR2: 4; RR3: 27-29).
1
STATEMENT OF PROCEDURAL HISTORY
On April 4, 2014, Appellant filed a brief raising six points of error on direct
appeal of his conviction. The State filed its response to Appellant’s brief on June
2, 2014. Both parties presented oral argument to the Court of Appeals on
November 12, 2014. On December 17, 2014, the Dallas Court of Appeals issued
an unpublished opinion modifying the trial court’s decision on Appellant’s
deferred adjudication order by deleting the stacking order. Ross v. State, No. 05-
14-00014-CR, 2014 Tex. App. LEXIS 13479 (Tex. App. – Dallas Dec. 17, 2014)
(not designated for publication). This Petition for Discretionary Review is timely
if filed on or before January 16, 2015.
QUESTION PRESENTED FOR REVIEW
Did the Court of Appeals err in determining that the trial court improperly
stacked Appellant’s term of deferred adjudication community supervision in this
case on his prison sentence in another case?
ARGUMENT
THE COURT OF APPEALS ERRED BY DELETING THE
TRIAL COURT’S ORDER STACKING APPELLANT’S TERM
OF DEFERRED COMMUNITY SUPERVISION IN THE
INSTANT CASE ON HIS PRISON SENTENCE IN ANOTHER
CASE.
2
In his brief on direct appeal, Appellant claimed the trial court erred in
stacking his term of deferred adjudication community supervision in the instant
robbery case on his prison sentence in his burglary case. The Dallas Court of
Appeals determined the issue in Appellant’s favor and modified his deferred
adjudication order to reflect that his period of community supervision is to run
concurrently with his sentence in the burglary case. Ross v. State, No. 05-14-
00014-CR, 2014 Tex. App. LEXIS 13479 (Tex. App. – Dallas Dec. 17, 2014) (not
designated for publication).1 The State will demonstrate that this Court’s review of
the decision of the Court of Appeals is appropriate under Tex. R. App. P. 66.3(a)
because the Court of Appeals’ decision conflicts with another Court of Appeals’
decision on the same issue.
RELEVANT FACTS
At the conclusion of the hearing on the revocation of Appellant’s probation
in Cause No. F12-57536 (the burglary case) and consideration of the new charges
in Cause No. F13-24874 (the instant robbery case), the court stated the following:
THE COURT: You know what, Mr. Bernard, I am just
disgusted with you. And I -- you know, I could imagine myself being
out there and someone like you and some other person coming up and
doing this. And here’s what really perturbs the Court is that I tried to
help you. I cut your fines and your court costs and I did everything I
1
Appellant’s robbery and burglary cases were considered in the same appeal. Because the
deletion of the stacking order involves only the robbery case, this Petition for Discretionary
Review is being filed only in the robbery case.
3
possibly could. And to be real honest with you, I’m going to tell you
this, you should get 20 years right this minute, that’s what you should
get. But due to your age, I’m going to give you a chance. And in
Cause Number F12-57536, I am going to grant the State’s motion
to revoke your probation. I’m going to assess your punishment in
that case at ten years confinement in the state jail -- in the Texas
Department of Criminal Justice. And your back time will be
granted. And all cost will run currently with your time. And I’m
going to place on here that you should enter the SAFPF program
while you are in prison, because it would be advisable for you while
you are serving your time. And hopefully you will probably do four --
at least four or five years.
Then in Cause Number F13-24874, I am going to not find
you guilty of this offense, however, I am going to place you on ten
years deferred probation. So when you get out of prison, whatever
time you have left -- look at you. Do you want -- do you want me to
give you 40 right now? Because I sure as hell will. I will give you 20
on each case and stack them, because I am tired of this bullshit. So
you’re lucky you’re not getting 40 right now. Wise ass out there. I
don’t give a damn if it is a fake gun. No, she didn’t know it was a fake
gun.
So when you get out of prison, you’re going back on
probation for ten years, and if you didn’t do the SAFPF program
and – I’m going to send you to SAFPF at the beginning of that
probation. I’ve got zero tolerance on that case. And you will -- you
will have -- you will be on probation for that case and then, sir, -- look
at me. If you mess up on that case, I can still give you 20. So you’re
going to either learn as a young man to get your act together or just
spend the rest of your life in prison hanging out with that guy smoking
whatever crap you guys were smoking. I’m sick of it and the
community is sick of it.
And you can tell those people in jail, yes, Judge Hawthorne will
help you, and she’ll do everything for you, but then when you don’t
do it – you’re lucky you’re not getting 40. Do you have any questions,
sir? Yes.
THE DEFENDANT: Why wouldn’t I just get ten and ten and run
concurrent?
4
THE COURT: Because you’re not the Judge, and I’m making the
decision, that’s why. Do you have another question?
THE DEFENDANT: No, Your Honor.
(RR3: 27-29) (Emphasis added). The court then sentenced Appellant to prison
time in Cause No. F12-57536. (RR3: 29). The court’s docket sheet in Cause No.
F13-24874-P states, “This prob [probation] will begin AFTER Def serves time on
Cause F 12-57536[.]” (CR2: 4).
SENTENCES WERE PROPERLY CUMULATED
The Code of Criminal Procedure gives trial courts the discretion to cumulate
sentences for two or more separate convictions, or to have such sentences run
concurrently. Tex. Code Crim. Proc. Ann. art. 42.08(a) (West Supp. 2013)
provides the following:
[I]n the discretion of the court, the judgment in the second and
subsequent convictions may either be that the sentence imposed or
suspended shall begin when the judgment and the sentence imposed or
suspended in the preceding conviction has ceased to operate, or that
the sentence imposed or suspended shall run concurrently with the
other case or cases….
A trial court’s decision to cumulate sentences is reviewed for an abuse of
discretion. Nicholas v. State, 56 S.W.3d 760,765 (Tex. App. – Houston [14th
Dist.] 2001, pet. ref'd).
In the instant case, the Dallas Court of Appeals followed its earlier decision
in Hurley v. State, 130 S.W.3d 501,503 (Tex. App. – Dallas 2004, no pet.), in
5
which the Court considered whether a deferred adjudication community
supervision could be stacked on a prison sentence and decided that it could not be
stacked. Hurley argued that because he was placed on deferred adjudication, he
was not convicted in that case, and the trial court lacked authority to stack his
community supervision onto his prison sentence. Id. at 504. The Dallas Court of
Appeals determined that a “conviction” always involves an adjudication of guilt
and, therefore, a court’s action in deferring the proceedings without an adjudication
of guilt is not a “conviction.” Id. at 505 (citing McNew v. State, 608 S.W.2d
166,171 (Tex. Crim. App. 1978)). Because Hurley’s deferred adjudication
community supervision was not a conviction for purposes of article 42.08, the
Court of Appeals concluded that the trial court abused its discretion in ordering the
deferred adjudication to begin after Hurley served his prison sentence. Id. at 507.
The decision of the Dallas Court of Appeals in Hurley was followed by the First
Court of Appeals in Beedy v. State, 194 S.W.3d 595,601 (Tex. App. – Houston [1st
Dist.] 2006), aff’d on other grounds, Beedy v. State, 250 S.W.3d 107 (Tex. Crim.
App. 2008).2
The Corpus Christi Court of Appeals, however, has reached a conflicting
decision under the same facts considered in Hurley. In Ex parte Garza, 192
2
In affirming Beedy, the issue before this Court appears to have been only which remedy
(reforming the judgment or remanding for a new punishment hearing) was proper.
6
S.W.3d 658,660 (Tex. App. – Corpus Christi 2006, no pet.), the trial court ordered
that Garza’s ten years of community supervision for attempted indecency be
deferred and take effect after he was released from prison for felony DWI.
Thereafter, when Garza was released from prison, the trial court entered an order
that he begin to serve ten years of community supervision for attempted indecency
with a child. Id. Garza cited the Dallas Court’s opinion in Hurley to argue that the
trial court could not stack the deferred adjudication without a conviction on the
prison sentence. Garza, 192 S.W.3d at 661. The Corpus Christi Court of Appeals
rejected that argument as follows:
However, the conclusion reached in Hurley does not apply here. It is
well established that a defendant placed on deferred adjudication, in
addition to not yet being convicted, also has not yet had a sentence
imposed. See Davis v. State, 968 S.W.2d 368, 371 (Tex. Crim. App.
1998); see also Donovan v. State, 68 S.W.3d 633, 636 (Tex. Crim.
App. 2002). Article 42.08 explicitly requires a second “sentence” that
begins when the preceding sentence “ceases to operate” for there to be
stacking of sentences. See TEX. CODE CRIM. PROC. ANN. art.
42.08(a) (Vernon Supp. 2005). A trial court cannot be in violation of a
sentence-stacking statute if there is only one sentence involved. See
id. In this case, there was neither a conviction nor a sentence imposed
by the court for the second case at the time Garza was given deferred
adjudication. The conviction and sentencing in the second case were
imposed after Garza was released from imprisonment for the first
case, thus giving the trial court the authority at that point to order the
commencement of Garza’s sentence of community supervision.
Because we conclude that this is not a case of illegal sentence
stacking, we overrule Garza’s first issue.
Garza, 192 S.W.3d at 661-662 (Emphasis in original).
7
The State requests that this Court consider the conflict among the Courts of
Appeals and overrule the decision in Hurley and the instant case for the same
reasons given in Garza. As in Garza, there was only one sentence imposed in the
instant case. The trial court sentenced Appellant to prison time in the burglary
case, Cause No. F12-57536, but deferred adjudication and did not pronounce
sentence in the instant case, Cause No. F13-24874. Because there is only one
sentence involved, the trial court cannot be in violation of article 42.08, which
provides for the stacking of two sentences.
The State submits that the Dallas Court of Appeals should have concluded
that the trial court can properly stack Appellant’s term of deferred adjudication
community supervision onto his prison sentence in his burglary case. Therefore,
the Court of Appeals should not have modified his deferred adjudication order to
reflect that his period of community supervision is to run concurrently with his
sentence in the burglary case. To correct this error by the Dallas Court of Appeals,
this Court should grant the State’s Petition for Discretionary Review and affirm the
trial court’s decision regarding the order to stack his term of community
supervision onto his prison time.
PRAYER
For all the foregoing reasons, the State prays that this Honorable Court will
grant this petition for discretionary review, and upon review of the opinion in this
8
cause, reverse the decision of the Court of Appeals for the Fifth District of Texas at
Dallas to modify his deferred adjudication order to reflect that his period of
community supervision is to run concurrently with his burglary sentence.
Respectfully submitted,
_________________________
SUSAN HAWK KAREN R. WISE
Criminal District Attorney Assistant District Attorney
Dallas County, Texas State Bar No. 21810200
Frank Crowley Courts Building
133 N. Riverfront Blvd., LB-19
Dallas, Texas 75207-4399
(214) 653-3637
(214) 653-3643 fax
CERTIFICATE OF SERVICE AND WORD-COUNT COMPLIANCE
I hereby certify that a true copy of the foregoing PDR was served on Riann
C. Moore, attorney for Appellant, Dallas County Public Defender’s Office, 133 N.
Riverfront Blvd., LB 2, Dallas, Texas 75207-4399, by hand delivery and electronic
communication through eFile.txcourts.gov to Riann.Moore@dallascounty.org, on
January 22, 2015. I further certify that this document contains 2,554 words,
inclusive of all contents.
I hereby certify that a true copy of the foregoing PDR was served on Lisa C.
McMinn, State Prosecuting Attorney, by electronic communication through
eFile.txcourts.gov to information@spa.texas.gov on January 22, 2015.
___________________________
KAREN R. WISE
9
APPENDIX
10
Page 1
BERNARD KAY ROSS, Appellant v. THE STATE OF TEXAS, Appellee
No. 05-14-00014-CR, No. 05-14-00015-CR
COURT OF APPEALS OF TEXAS, FIFTH DISTRICT, DALLAS
2014 Tex. App. LEXIS 13479December 17, 2014, Opinion Filed
NOTICE: PLEASE CONSULT THE TEXAS RULES Sentences
OF APPELLATE PROCEDURE FOR CITATION OF Criminal Law & Procedure > Sentencing > Consecutive
UNPUBLISHED OPINIONS. Sentences
Criminal Law & Procedure > Sentencing > Multiple
PRIOR HISTORY: [*1] On Appeal from the 203rd Convictions
Judicial District Court Dallas County, Texas. Trial Court Criminal Law & Procedure > Preliminary Proceedings
Cause Nos. F13-24874-P and F12-57536-P. > Pretrial Diversion > Appellate Review & Judicial
Discretion
CASE SUMMARY: [HN1] An appellate court reviews a trial court's decision
to cumulate sentences for an abuse of discretion.
Cumulative sentencing is permitted only as provided by
OVERVIEW: ISSUE: Whether a trial court could stack statute. Tex. Code Crim. Proc. Ann. art. 42.08 (Supp.
a term of deferred adjudication community supervision 2014) provides that when a defendant has been convicted
onto a prison sentence. HOLDINGS: [1]-It was error for in two or more cases, a trial court has discretion to order
a trial court to stack defendant's term of deferred the judgment and sentence imposed in the second
adjudication community supervision onto his prison conviction either 1) to begin to run after the judgment and
sentence, under Tex. Code Crim. Proc. Ann. art. 42.08(a) sentence imposed in the preceding conviction has ceased
(Supp. 2014), because the deferred adjudication did not to operate, or 2) to run concurrently with the judgment
include an adjudication of guilt, so it was not a conviction and sentence imposed in the preceding conviction. Tex.
for purposes of the statute. Code Crim. Proc. Ann. art. 42.08(a) (Supp. 2014).
Because it does not include an adjudication of guilt, a
OUTCOME: Judgment affirmed as modified. deferred adjudication order is not a conviction for
purposes of Tex. Code Crim. Proc. Ann. art. 42.08 (Supp.
LexisNexis(R) Headnotes 2014). Under the statute, a trial court does not have
discretion to stack two sentences until a defendant has
been convicted of two or more offenses and sentences are
imposed or suspended in those cases. Accordingly, a trial
Criminal Law & Procedure > Sentencing > Appeals > court abuses its discretion in ordering a deferred
Standards of Review > Abuse of Discretion adjudication to begin after a defendant serves his or her
Criminal Law & Procedure > Sentencing > Concurrent prison sentence.
Page 2
2014 Tex. App. LEXIS 13479, *1
COUNSEL: For Appellants: Riann Moore, Katherine begin after appellant served his prison sentence, stating,
Drew, Lynn Richardson, Dallas, TX. "So when you get out of prison, you're going back on
probation for ten years."
For Appellees: Karen Wise, Craig Watkins, Dallas, TX.
In his first point of error, appellant contends the trial
JUDGES: Before Justices FitzGerald, Lang, and Brown. court erred in stacking his term of deferred adjudication
Opinion by Justice Brown. community supervision onto his prison sentence. We
agree.
OPINION BY: ADA BROWN
[HN1] We review a trial court's decision to cumulate
OPINION sentences for an abuse of discretion. Hurley v. State, 130
S.W.3d 501, 503 (Tex. App.--Dallas 2004, no pet.).
Cumulative sentencing is permitted only as provided by
MEMORANDUM OPINION statute. Id. Article 42.08 of the code of criminal
procedure provides that when a defendant has been
Opinion by Justice Brown convicted in two or more cases, the trial court has
discretion [*3] to order the judgment and sentence
Bernard Kay Ross appeals from an order of deferred
imposed in the second conviction either 1) to begin to run
adjudication for robbery and a conviction for burglary. At
after the judgment and sentence imposed in the preceding
issue is whether a trial court can stack a term of deferred
conviction has ceased to operate, or 2) to run
adjudication community supervision onto a prison
concurrently with the judgment and sentence imposed in
sentence. This Court has already determined this issue in
the preceding conviction. Id.; see TEX. CODE CRIM.
appellant's favor. We modify the order of deferred
PROC. ANN. art. 42.08(a) (West Supp. 2014). In Hurley,
adjudication to reflect that the period of community
we held that, because it does not include an adjudication
supervision is to run concurrently with the burglary
of guilt, a deferred adjudication order is not a conviction
sentence. We further modify the order and also the
for purposes of article 42.08. Hurley, 130 S.W.3d at 505;
judgment of conviction to make other revisions the
see Beedy v. State, 194 S.W.3d 595, 602 (Tex.
parties agree upon. As modified, we affirm the trial
App.--Houston [1st Dist.] 2006), aff'd, 250 S.W.3d 107court's order and judgment.
(Tex. Crim. App. 2008).2 Under the statute, the trial court
In 2012, appellant was indicted for burglary of a does not have discretion to stack two sentences until a
habitation. He pleaded guilty pursuant to a plea bargain defendant has been convicted of two or more offenses
agreement and was placed on deferred adjudication and sentences are imposed or suspended in those cases.
community supervision for six years and fined $2,500. In Hurley, 130 S.W.3d at 506. Accordingly, we concluded
2013, appellant was indicted for robbery.1 Based on this the trial court abused its discretion in ordering the
new offense, among other things, the State moved to deferred adjudication to begin after the defendant served
revoke appellant's community [*2] supervision. his prison sentence. Id. at 507. We reach the same
conclusion in this case.
1 Appellant was indicted for aggravated robbery,
but the trial court later granted the State's motion 2 In Beedy, the court of criminal appeals
to reduce the charge to robbery. addressed only the issue of what the appropriate
remedy was for an improper cumulation order --
On November 1, 2013, appellant pleaded guilty to deletion of the improper cumulation order or
robbery and true to the allegations in the State's motion to remand for resentencing. Beedy, 250 S.W.3d at
revoke. The court revoked appellant's community 109. The court determined the proper remedy was
supervision, adjudicated appellant guilty of burglary, and to delete the cumulation order. Id. at 115.
assessed punishment for that offense at ten years'
confinement. The court also deferred finding appellant The State urges [*4] us to reconsider this issue in
guilty of robbery and placed him on deferred adjudication light of Ex parte Garza, 192 S.W.3d 658 (Tex.
community supervision for ten years. The court orally App.--Corpus Christi 2006, no pet.). The court of appeals
pronounced that the term of deferred adjudication would in that habeas case did not disagree with Hurley but
instead found the conclusion we reached did not apply. Id
Page 3
2014 Tex. App. LEXIS 13479, *4
. at 661. It seemed to draw a distinction based on the fact attorney for the State was Stephanie Mitchell; and 3) the
that Garza had already been released from prison and, "Terms of Plea Bargain" are none. We modify the
upon his release, the court had entered a new order that judgment in cause number F12-57536-P to reflect that: 1)
he begin to serve his deferred adjudication community the attorney for the State was Stephanie Mitchell; 2) the
supervision. Id. at 660-62. It ruled that a trial court "Terms of Plea Bargain" are none; and 3) appellant shall
cannot be in violation of a sentence stacking statute if attend SAFPF. We order the trial court to enter a new
there is only one sentence involved. Id. at 662. We do not order of deferred adjudication and a new judgment of
find Garza persuasive and will follow the precedent of conviction to reflect these modifications. As modified,
this Court. we affirm the trial court's order of deferred adjudication
and its judgment of conviction.
Although the trial court orally pronounced that the
term of community supervision would begin to run after /Ada Brown/
appellant served his prison term, its order of deferred
adjudication is silent on whether the period of community ADA BROWN
supervision is to run concurrently or consecutively with
JUSTICE
the prison sentence. Nevertheless, to be clear, we modify
the order to reflect that the period of deferred Do Not Publish
adjudication community supervision is to run TEX. R. APP. P. 47.
concurrently with the sentence in the burglary case. We
sustain appellant's first point of error. JUDGMENT
In points two through six, appellant contends we Based on the Court's opinion of this date, the trial
need to make other [*5] modifications to the order of court's order of deferred adjudication is MODIFIED as
deferred adjudication, as well as the judgment in the follows:
burglary case, to correct various errors. Specifically, he
contends the order and judgment both erroneously The period of community supervision is to run
indicate there was a plea bargain agreement, when his concurrently with the sentence in cause number
pleas of guilty and true were open pleas. He also F12-57536-P.
contends the documents incorrectly reflect that the State's
attorney was Herschel Wood, when the reporter's records The attorney for the State was Stephanie Mitchell.
show it was Stephanie Mitchell. Finally, appellant
The "Terms of Plea Bargain" are none.
contends the judgment of conviction does not reflect the
court's oral order that he attend the Substance Abuse We ORDER the trial court to enter a new order of
Felony Punishment Facility (SAFPF) drug program while deferred adjudication to reflect these modifications. As
in prison.3 The State agrees these modifications should be MODIFIED, the order is AFFIRMED.
made. See Asberry v. State, 813 S.W.2d 526, 529 (Tex.
App.--Dallas 1991, pet. ref'd) (appellate court has power Judgment entered this 17th day of December, 2014.
to correct and reform judgment of court below to make
record speak truth when it has information to do so). We JUDGMENT
sustain points of error two through six.
Based on the Court's opinion of [*7] this date, the
3 The trial court stated, "And I'm going to place judgment of the trial court is MODIFIED as follows:
on here that you should enter the SAFPF program
while you are in prison, because it would be The attorney for the State was Stephanie
advisable for you while you are serving your Mitchell.
time."
The "Terms of Plea Bargain" are
We modify the order of deferred adjudication in none.
cause number F13-24874-P to reflect that: 1) the period
of community supervision is to [*6] run concurrently The defendant shall attend SAFPF.
with the sentence in cause number F12-57536-P; 2) the
Page 4
2014 Tex. App. LEXIS 13479, *7
As MODIFIED, the judgment is Judgment entered this 17th day of December, 2014.
AFFIRMED.