Nigel Hays v. State ( 2020 )

AFFIRM AS MODIFIED; Opinion Filed March 9, 2020
In The
Court of Appeals
Fifth District of Texas at Dallas
No. 05-19-00300-CR
No. 05-19-00301-CR
NIGEL HAYS, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the Criminal District Court No. 1
Dallas County, Texas
Trial Court Cause Nos. F-1730683-H, F-1730684-H
MEMORANDUM OPINION
Before Justices Osborne, Partida-Kipness, and Pedersen, III
Opinion by Justice Partida-Kipness
Nigel Hays appeals from the revocation of community supervision and
conviction for possession with intent to deliver gamma hydroxybutyrate and the
revocation of community supervision for possession with intent to deliver
methamphetamine. In one issue, Hays seeks to reform the trial court’s judgments to
accurately reflect his “Not true” plea to the State’s motions to revoke community
supervision and adjudicate guilt. The State agrees. We sustain Hays’s sole issue,
modify the judgments accordingly, and affirm the judgments as modified.
This Court has the power to correct and reform the judgments of the court
below to make the record speak the truth when it has the necessary information to
do so. See TEX. R. APP. P. 43.2(b); Bigley v. State, 865 S.W.2d 26, 27–28 (Tex.
Crim. App. 1993); Asberry v. State, 813 S.W.2d 526, 529–30 (Tex. App.—Dallas
1991, pet. ref’d). Appellate courts have the power to reform whatever the trial court
could have corrected by a judgment nunc pro tunc when the evidence necessary to
correct the judgment appears in the record. Asberry, 813 S.W.2d at 530. Appellate
courts may reform judgments to correct improper recitations or omissions relating
to punishment, delete affirmative findings improperly entered into the judgment, and
correct statutory references. See id.; Medlock v. State, No. 05-11-00668-CR, 2012
WL 4125922, at *1 (Tex. App.—Dallas Sept. 20, 2012, no pet.) (mem. op., not
designated for publication).
Hays was indicted for possession with intent to deliver at least 4 grams but
less than 200 grams of methamphetamine (case F-1730683-H) and possession with
intent to deliver at least 400 grams of gamma hydroxybutyrate (case F-1730684-H).
See TEX. HEALTH & SAFETY CODE ANN. § 481.112. Hays pleaded guilty to both
charges, and the trial court sentenced Hays to 10 years’ community supervision in
both cases, deferring adjudication of guilt in case F-1730684-H.
The State later alleged that Hays had violated the terms of his community
supervision and moved to revoke community supervision or adjudicate guilt in both
cases. The trial court granted the State’s motions, sentenced Hays to 10 years’
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imprisonment in case F-1730683-H, and adjudicated guilt and sentenced Hays to 20
years’ imprisonment in case F-1730684-H. In both judgments, the trial court
indicated that Hays pleaded “TRUE” to the State’s motion. However, the record
reflects that Hays pleaded “Not true.”
Based on the record before the Court, we sustain Hays’s sole issue and modify
the judgments to reflect that Hays pleaded “NOT TRUE” to the “Plea to Motion to
Revoke” in case F-1730683-H and the “Plea to Motion to Adjudicate” in case F-
1730684-H. See Asberry, 813 S.W.2d at 530. We affirm the judgments as modified.
/Robbie Partida-Kipness/
ROBBIE PARTIDA-KIPNESS
JUSTICE
Do Not Publish
TEX. R. APP. P. 47.2(b).
190300F.U05
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Court of Appeals
Fifth District of Texas at Dallas
JUDGMENT
NIGEL HAYS, Appellant On Appeal from the Criminal District
Court No. 1, Dallas County, Texas
No. 05-19-00300-CR V. Trial Court Cause No. F-1730683-H.
Opinion delivered by Justice Partida-
THE STATE OF TEXAS, Appellee Kipness. Justices Osborne and
Pedersen, III participating.
Based on the Court’s opinion of this date, the judgment of the trial court is
MODIFIED as follows:
The section entitled “Plea to Motion to Revoke” is modified to show “NOT
TRUE.”
As MODIFIED, the judgment is AFFIRMED.
Judgment entered this 9th day of March, 2020
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Court of Appeals
Fifth District of Texas at Dallas
JUDGMENT
NIGEL HAYS, Appellant On Appeal from the Criminal District
Court No. 1, Dallas County, Texas
No. 05-19-00301-CR V. Trial Court Cause No. F-1730684-H.
Opinion delivered by Justice Partida-
THE STATE OF TEXAS, Appellee Kipness. Justices Osborne and
Pedersen, III participating.
Based on the Court’s opinion of this date, the judgment of the trial court is
MODIFIED as follows:
The section entitled “Plea to Motion to Adjudicate” is modified to show
“NOT TRUE.”
As MODIFIED, the judgment is AFFIRMED.
Judgment entered this 9th day of March, 2020
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