Cody Derrek Barnard v. State ( 2021 )

In the
Court of Appeals
Second Appellate District of Texas
at Fort Worth
___________________________
No. 02-19-00184-CR
___________________________
CODY DERREK BARNARD, Appellant
V.
THE STATE OF TEXAS
On Appeal from the 372nd District Court
Tarrant County, Texas
Trial Court No. 1534169D
Before Sudderth, C.J.; Kerr and Wallach, JJ.
Memorandum Opinion by Justice Kerr
MEMORANDUM OPINION
After entering a charge bargain,1 appellant Cody Derrek Barnard pleaded guilty
to intoxication assault with a motor vehicle causing serious bodily injury and went
before the court for punishment. The trial court sentenced Barnard to ten years’
incarceration in prison with a recommendation that Barnard “be paroled to [the
Substance Abuse Felony Program], which might get [him] out sooner.”2 Barnard
appealed, and the trial court certified that Barnard had its permission to appeal.
In two points, Barnard argues that (1) the trial court abused its discretion and
assessed a grossly disproportionate punishment in violation of the United States
Constitution by not suspending his sentence and placing him on community
supervision and (2) the trial court denied him due process and due course of law
under the United States and Texas Constitutions, respectively, by not suspending the
imposition of his sentence and placing him on community supervision. The State
responds that Barnard failed to preserve either complaint.
The record shows that Barnard did not object when sentenced and that
although he filed a motion for new trial, he did not complain about his sentence. We
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The trial court disputes that a charge bargain occurred. But both Barnard and
the State assert unequivocally in their briefs that Barnard pleaded guilty as part of a
charge bargain, and in the process, both sides describe a classic charge bargain. See
Harper v. State, 567 S.W.3d 450, 455 (Tex. App.—Fort Worth 2019, no pet.)
(explaining a charge bargain as a type of plea bargain).
2
The trial court referred to this as “SAFP.” See Ex parte Wilson, 171 S.W.3d 925,
927 (Tex. App.—Dallas 2005, no pet.).
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hold that Barnard has not preserved his complaints, and we overrule both points. See
Leza v. State, 351 S.W.3d 344, 358 (Tex. Crim. App. 2011); Sample v. State, 405 S.W.3d
295, 303–04 (Tex. App.—Fort Worth 2013, pet. ref’d).
But one more matter remains. In the judgment, under “Terms of Plea Bargain,”
the plea-bargain box is left unchecked, and the judgment recites “Open Plea to the
Court.” This is a clerical error and is not supported by the record, which shows a
charge bargain with Barnard going to the court with no agreement on punishment (no
sentence bargain). See Harper, 567 S.W.3d at 455. Put another way, the record shows a
charge bargain with Barnard going “open” to the court for punishment. The guilty
plea itself was not open (it was settled); rather, it was the punishment to be imposed
based on the guilty plea that was open (it was not settled). See Open, Black’s Law
Dictionary (10th ed.) (defining “open” as “[n]ot closed, settled, fixed, or terminated”).
We may modify incorrect judgments to make the record “speak the truth”
when we have the necessary data and information to do so. Ette v. State, 551 S.W.3d
783, 792 (Tex. App.—Fort Worth 2017), aff’d, 559 S.W.3d 511 (Tex. Crim. App.
2018). We have the power to modify whatever the trial court could have corrected by
a judgment nunc pro tunc when the information necessary to correct the judgment
appears in the record. Id. Our authority to modify incorrect judgments depends
neither on a party’s request nor on whether a party objected in the trial court. Id.Accordingly, we delete “Open Plea to the Court” from the judgment, check the box
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for “Terms of Plea Bargain,” and insert the following into the judgment: “Defendant
pleaded guilty in exchange for the State’s waiving a deadly weapon finding.” See id.As modified, we affirm the trial court’s judgment.
/s/ Elizabeth Kerr
Elizabeth Kerr
Justice
Do Not Publish
Tex. R. App. P. 47.2(b)
Delivered: March 4, 2021
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