Cody Derrek Barnard v. State

• Court: Court of Appeals of Texas
• Decided: March 4, 2021
• Docket: 02-19-00184-CR
• Status: Published

Opinion

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

1 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.).

2 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

3 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