Opinion issued May 27, 2021
In The
Court of Appeals For The
First District of Texas ———————————— NOS. 01-18-01059-CR & 01-18-01062-CR ——————————— DAMION VAN FLOWERS, Appellant V. THE STATE OF TEXAS, Appellee
On Appeal from the 458th District Court Fort Bend County, Texas Trial Court Case Nos. 15-DCR-070028B & 15-DCR-070030
O P I N I O N
Damion Van Flowers appeals from two judgments of conviction, one for
aggravated robbery and one for possession of a controlled substance in a drug-free
zone, contending that the trial court erred in assessing his punishment for the latter
offense by failing to apply the correct punishment range. Van Flowers requests that we modify the trial court’s judgment of conviction for the drug offense to impose
the minimum punishment permissible under the correct range of punishment.
While we agree that the trial court erred in assessing punishment for the drug
offense, we decline to modify the trial court’s corresponding judgment of conviction.
Instead, we affirm both judgments of conviction but reverse solely as to punishment
with respect to the drug offense and remand that cause to the trial court to assess
punishment under the correct punishment range for the offense.
BACKGROUND
A grand jury issued two indictments against Van Flowers. The first accused
Van Flowers of aggravated robbery. See TEX. PENAL CODE § 29.03(a)(2). The
second accused him of felony possession of a controlled substance,
methamphetamine, weighing 4 grams or more but less than 200 grams in a drug-free
zone. See TEX. HEALTH & SAFETY CODE §§ 481.115(d), 481.134(c). Both
indictments included an enhancement paragraph based on his prior conviction for
the third-degree felony offense of escape. See PENAL §§ 12.42(b)–(c), 38.06(a), (c).
Van Flowers pleaded guilty to both crimes and true to the enhancement
allegations. During the punishment hearing, Van Flowers testified that he was under
the influence of Xanax, cocaine, and PCP when he committed the offenses. Though
he pleaded guilty, Van Flowers stated that he did not intend to rob his victim,
claiming that his victim thought he was being robbed when Van Flowers entered his
2 garage brandishing a knife. Van Flowers was apprehended by peace officers at a
convenience store shortly afterward. He resisted arrest, and one of the officers
subdued him with a taser. When the officers took Van Flowers into custody, he had
drugs in his possession.
The prosecutor, defense, and trial court agreed that the statutory minimum
punishment for each offense was 15 years’ imprisonment. The trial court assessed
punishment at 15 years’ imprisonment for each offense. It also ordered that the two
sentences run consecutively, as required by statute. See HEALTH & SAFETY
§ 481.134(h) (punishments increased because drug offense occurs in drug-free zone
“may not run concurrently with punishment for a conviction under any other
criminal statute”). When Van Flowers expressed dismay at the severity of the
punishment, the trial court explained that it had assessed the minimum punishment
allowed by law.
DISCUSSION
Van Flowers contends that the trial court erred in calculating the statutory
minimum punishment for the drug offense. He maintains that the correct minimum
punishment for this offense is 10 years’ imprisonment. He further contends that the
record shows the trial court intended to sentence him to the statutory minimum for
both the aggravated robbery and the drug offense. Accordingly, Van Flowers asks
that we reform the trial court’s judgment to impose 10 years’ imprisonment for the
3 drug offense. The State agrees that we should modify the judgment as Van Flowers
urges.
Applicable Law
Confession of Error
We give due consideration to the State’s confession of error, but its confession
is not dispositive. Saldano v. State, 70 S.W.3d 873, 884 (Tex. Crim. App. 2002). We
must independently assess the merits of an appellant’s claim of error. Id.; accord
Estrada v. State, 313 S.W.3d 274, 286 (Tex. Crim. App. 2010) (proper
administration of criminal law cannot be left to stipulation of parties); see, e.g., Neale
v. State, 525 S.W.3d 800, 810–13 (Tex. App.—Houston [14th Dist.] 2017, no pet.)
(independently analyzing issue and affirming despite State’s confession of error).
Modification of Judgments
The rules of appellate procedure authorize us to “modify the trial court’s
judgment and affirm it as modified.” TEX. R. APP. P. 43.2(b). Under the rules, an
appellate court may “reform a judgment to include an affirmative finding to make
the record speak the truth when the matter has been called to its attention by any
source.” French v. State, 830 S.W.2d 607, 609 (Tex. Crim. App. 1992). We may
likewise delete such a finding to accurately reflect the record. Malbrough v. State,
612 S.W.3d 537, 563–64 (Tex. App.—Houston [1st Dist.] 2020, pet. ref’d).
Consistent with our authority to modify a judgment to include or delete an
4 affirmative finding, we have modified judgments to correct errors with respect to:
• court costs and fees;
• deadly-weapon findings;
• the defendant’s name; • the offense of conviction;
• appeal waivers; • the defendant’s plea to enhancement allegations;
• enhancement-allegation findings;
• family-violence findings;
• period of community supervision; • fines; • the imposition of court-appointed counsel’s fees;
• credit for time served;
• the degree of felony of the offense of conviction; • conflicts between the trial court’s oral pronouncement of punishment from the bench and the written judgment;
• the defendant’s plea to the indicted offense;
• the identity of the person to whom the defendant must pay restitution; and • conflicts between the punishment assessed by the jury and the punishment stated in the trial court’s judgment.
See, e.g., Pacas v. State, 612 S.W.3d 588, 596–97 (Tex. App.—Houston [1st Dist.]
2020, pet. ref’d) (court costs); Malbrough, 612 S.W.3d at 563–64 (deadly-weapon
finding); Tiscareno v. State, 608 S.W.3d 434, 443 (Tex. App.—Houston [1st Dist.]
5 2020, pet. ref’d) (defendant’s name); Cazarez v. State, 606 S.W.3d 549, 557–58
(Tex. App.—Houston [1st Dist.] 2020, no pet.) (offense); Edwards v. State, 497
S.W.3d 147, 164 (Tex. App.—Houston [1st Dist.] 2016, pet. ref’d) (plea to
enhancement allegations); Morris v. State, 496 S.W.3d 833, 835–36 (Tex. App.—
Houston [1st Dist.] 2016, pet. ref’d) (appeal waiver); Dromgoole v. State, 470
S.W.3d 204, 226–27 (Tex. App.—Houston [1st Dist.] 2015, pet. ref’d) (trial court’s
enhancement finding); Montano v. State, 433 S.W.3d 694, 697–98 (Tex. App.—
Houston [1st Dist.] 2014, no pet.) (court costs and fees); Jones v. State, 428 S.W.3d
163, 171–72 (Tex. App.—Houston [1st Dist.] 2014, no pet.) (court-appointed
counsel’s fees); Conner v. State, 418 S.W.3d 742, 744–45 (Tex. App.—Houston [1st
Dist.] 2013, no pet.) (fine and credit for time served); Agbogwe v. State, 414 S.W.3d
820, 839–41 (Tex. App.—Houston [1st Dist.] 2013, no pet.) (family-violence
finding, period of community supervision, and amount of fine); Castillo v. State, 404
S.W.3d 557, 564–65 (Tex. App.—Houston [1st Dist.] 2010, pet. ref’d) (degree of
felony, plea to enhancement allegations, and trial court’s enhancement findings);
Donovan v. State, 232 S.W.3d 192, 197 (Tex. App.—Houston [1st Dist.] 2007, no
pet.) (conflict between trial court’s oral pronouncement of punishment and written
judgment); Campbell v. State, 227 S.W.3d 326, 332 (Tex. App.—Houston [1st Dist.]
2007, no pet.) (defendant’s plea to offense); Tyler v. State, 137 S.W.3d 261, 267–68
(Tex. App.—Houston [1st Dist.] 2004, no pet.) (person owed restitution); Nolan v.
6 State, 39 S.W.3d 697, 698–99 (Tex. App.—Houston [1st Dist.] 2001, no pet.)
(offense, defendant’s name, and conflict between punishment assessed by jury and
punishment stated in trial court’s judgment); see also Deleon v. State, Nos. 01-15-
00927–28-CR, 2016 WL 6599622, at *3 (Tex. App.—Houston [1st Dist.] Nov. 8,
2016, no pet.) (mem. op., not designated for publication) (defendant’s plea to
motions to adjudicate); Durr v. State, No. 01-13-00256-CR, 2015 WL 1245478, at
*2 (Tex. App.—Houston [1st Dist.] Mar. 17, 2015, no pet.) (per curiam) (mem. op.,
not designated for publication) (date of defendant’s offense); Garrison v. State, Nos.
01-12-01144–46-CR, 2014 WL 2932854, at *1 (Tex. App.—Houston [1st Dist.]
June 26, 2014, pet. ref’d) (per curiam) (mem. op., not designated for publication)
(date punishment assessed and deadly-weapon finding); Haynes v. State, No. 01-09-
00380-CR, 2010 WL 5250881, at *7 (Tex. App.—Houston [1st Dist.] Dec. 9, 2010,
pet. ref’d) (mem. op., not designated for publication) (finding as to whether
defendant represented self or was represented by counsel).
What these modifications have in common is that the record indisputably
reflected an error readily correctable by reference to information in the record. Our
authority to modify a trial court’s judgment is not restricted to the correction of
clerical errors. Bigley v. State, 865 S.W.2d 26, 27 (Tex. Crim. App. 1993); Morris,
496 S.W.3d at 836. But the record must supply us with the information necessary to
show both that a modification is warranted and the particular modification that is
7 warranted. See Tiscareno, 608 S.W.3d at 443 (appellate court can modify judgment
when it has information necessary to do so). If the record does not do both, we cannot
modify the trial court’s judgment. See, e.g., Broussard v. State, 226 S.W.3d 619,
621–22 (Tex. App.—Houston [1st Dist.] 2007, no pet.) (court could not modify
judgment to credit time served when record lacked necessary information).
Analysis
Absent an express waiver, a criminal defendant has the right to have his
punishment assessed in light of the correct range of punishment. Grado v. State, 445
S.W.3d 736, 741–43 (Tex. Crim. App. 2014). A trial court errs if it fails to do so,
and a defendant can raise this error for the first time on appeal. Id.
The record shows the trial court erred by assessing punishment under an
incorrect punishment range because it was mistaken as to the minimum punishment
allowable by law. The trial court, with the concurrence of the prosecutor and defense
counsel, concluded that the statutory minimum punishment for the drug offense was
15 years’ imprisonment. When Van Flowers himself asserted that the minimum was
10 years’ imprisonment, the trial court disagreed.
But Van Flowers was right. Possession of 4 or more grams but less than 200
grams of methamphetamine is a second-degree felony, which ordinarily is
punishable by a term of imprisonment between 2 and 20 years. HEALTH & SAFETY
§ 481.115(a), (d); PENAL § 12.33(a). Because Van Flowers previously had been
8 convicted of a third-degree felony, escape, his drug offense was enhanced to a first-
degree felony, which ordinarily is punishable by a term of imprisonment between 5
and 99 years. PENAL §§ 12.32(a), 12.42(b). And because Van Flowers committed
the drug offense within 1,000 feet of a school, youth center, or playground, the
minimum term of imprisonment was increased by 5 years. HEALTH & SAFETY
§ 481.134(c). Thus, the minimum punishment for the drug offense was 10 years’
imprisonment.
The record, however, does not show that the trial court intended to assess
punishment at the statutory minimum term of imprisonment no matter what the
minimum happened to be. During the punishment hearing, Van Flowers protested
that the minimum punishment for the drug offense was 10 years and that the
imposition of two cumulative 15-year terms was unjust. The trial court responded,
in part, by stating that it gave Van Flowers “the minimum sentence” that it “possibly
could,” given the statutory minimums of 15 years for both offenses and the statutory
requirement that the punishment for the drug offense be cumulative. But the trial
court did not state or otherwise suggest that it:
• would have assessed a punishment of less than 15 years’ imprisonment for the drug offense if the law allowed the court to do so;
• intended to assess the statutory minimum punishment for the drug offense no matter what the statutory minimum turned out to be; or
• would have assessed a punishment of 10 years’ imprisonment for the drug offense if that had been the applicable statutory minimum.
9 In fact, the record lacks any indication as to what punishment the trial court would
have assessed for the drug offense had the court correctly analyzed the law.
The parties essentially ask us to modify the trial court’s judgment to reflect an
ostensible intent the court did not clearly express. But mindreading is not a proper
basis for modification. We can modify a judgment only if the record gives us the
information required to do so. The record before us does not.
While there is a correct range of punishment in a given case, including this
one, there is not a correct punishment within that range. See Barrow v. State, 207
S.W.3d 377, 379–80 (Tex. Crim. App. 2006). Instead, the assessment of punishment
is a normative, discretionary decision. Id. Unless the trial court explicitly states its
reasoning on the record, we neither know the basis for its punishment decision nor
what it would have decided if the law permitted a lesser punishment. See Smith v.
State, 286 S.W.3d 333, 344 (Tex. Crim. App. 2009). Here, the trial court stated only
that it was assessing the statutory minimum punishment for the drug offense. It did
not elaborate on whether it would have assessed less punishment if the law allowed
it to do so.
Past decisions in which we have modified a judgment to correct a defendant’s
punishment underscore why doing so is not possible here. In Donovan, for example,
the trial court assessed the defendant’s punishment at 45 years’ imprisonment from
the bench but provided for 40 years’ imprisonment in its written judgment. 232
10 S.W.3d at 197. Applying the blackletter rule that a trial court’s oral pronouncement
of sentence prevails over conflicting terms in the written judgment, we modified the
judgment to conform to the trial court’s oral pronouncement. Id.; see also Edwards
v. State, 178 S.W.3d 139, 146–47 (Tex. App.—Houston [1st Dist.] 2005, no pet.)
(modifying judgment assessing 18 months’ imprisonment to reflect 16 months’
imprisonment assessed from bench). Similarly, in Nolan, the jury’s verdict assessed
the defendant’s punishment at 50 years’ imprisonment, but the trial court’s judgment
provided for 40 years’ imprisonment. 39 S.W.3d at 698–99. Because the discrepancy
between verdict and judgment resulted from a clerical error, we modified the
judgment to conform to the jury’s verdict. Id. at 699. These decisions, unlike this
case, turned on unambiguous information memorialized in writing in the record
rather than an evaluation of the unexpressed intent of the trial court.
Neither Van Flowers nor the State direct our attention to a decision in which
a court of appeals has modified a judgment under like circumstances. Van Flowers
cites Ramirez v. State, in which the Seventh Court corrected two clerical errors
apparent on the face of the record—that the defendant had pleaded not guilty to the
indictment, rather than guilty, and was convicted of aggravated assault of a public
servant under section 22.02(b)(2)(B) of the Penal Code, rather than section
22.02(b)(2). 336 S.W.3d 846, 852 (Tex. App.—Amarillo 2011, pet. ref’d). He also
cites Lopez v. State, in which our sister court modified the judgment because there
11 was “a variance between the oral pronouncement of sentences and the judgments.”
515 S.W.3d 547, 549–50 (Tex. App.—Houston [14th Dist.] 2017, pet. ref’d). Neither
Ramirez nor Lopez involved the imposition of a different term of imprisonment by
the appellate court based on its evaluation of the trial court’s unstated intent.
The State, in turn, relies on Forcey v. State, in which the trial court assessed a
fine of $10,000 even though the State and defendant had agreed in a plea bargain
that the maximum amount of any fine would be $2,000. 265 S.W.3d 921, 923 (Tex.
App.—Austin 2008, no pet.). At a later hearing on the defendant’s habeas petition,
the trial court made findings of fact, finding that it had intended to abide by the plea
bargain and had not been aware of the agreed cap on the fine amount. Id. at 924. The
trial court further found that if the parties had told it about the cap, it would have
reformed the judgment to reduce the fine to $2,000. Id. The Third Court therefore
modified the judgment to reflect the trial court’s findings. Id. at 925.
On its face, Forcey materially differs from the situation at bar. In Forcey, the
trial court stated its intent in formal findings of fact. Id. at 924–25. Had it known of
the plea bargain’s term about the fine, its judgment would have conformed to the
bargain. Id. In contrast, the trial court never stated it would have assessed Van
Flowers’s punishment at 10 years’ imprisonment had it known 10 years was the
statutory minimum. Forcey actually undermines Van Flowers and the State’s shared
position by illustrating how unambiguous the evidence of the trial court’s intent must
12 be for an appellate court to modify the punishment assessed.
On the far more limited record before us, the parties’ request that we modify
the trial court’s punishment is tantamount to asking us to reassess punishment in
light of the correct range. This we cannot do. The assessment of punishment is the
exclusive prerogative of the trial court. TEX. CODE CRIM. PROC. art. 37.07, § 2(b);
see Quick v. State, 557 S.W.3d 775, 791 (Tex. App.—Houston [14th Dist.] 2018,
pet. ref’d) (appellate court cannot substitute its judgment for trial court’s as to
assessment of particular punishment). It is the trial court that saw and heard Van
Flowers testify firsthand at the punishment hearing. Consequently, the trial court
alone is capable of making the kind of credibility assessments integral to deciding
what punishment within the permissible range is appropriate. See Thomas v. State,
551 S.W.3d 382, 387 (Tex. App.—Houston [14th Dist.] 2018, pet. ref’d) (when trial
court sits as factfinder in punishment hearing, it weighs witness credibility).
Instead, as we held in State v. Rowan, the proper remedy under these
circumstances is a limited remand to the trial court for a new punishment hearing to
reassess punishment in light of the correct range of punishment. 927 S.W.2d 116,
117–18 (Tex. App.—Houston [1st Dist.] 1996, no pet.). In Rowan, the trial court
erred in applying the range of punishment for Class A misdemeanors rather than the
range for Class B misdemeanors that actually applied. Id. at 118. Though the
punishment the trial court assessed fell within the permissible range for a Class B
13 misdemeanor, we reversed the trial court’s judgment as to punishment and remanded
the cause for a new punishment hearing so the trial court could assess an appropriate
punishment in light of the correct range of punishment. Id. We held that we could
not presume that the trial court would have assessed the same punishment had it
understood the correct range. Id.
The same is true here. The trial court thought the range of punishment was
between 15 to 99 years when it actually was between 10 to 99 years. In assessing
punishment at 15 years’ imprisonment, the trial court assessed a punishment that lies
within the permissible range of punishment. But the record does not disclose whether
the trial court would have assessed the same or a different punishment had it
understood the correct punishment range. Thus, a new punishment hearing is
required to allow the trial court to assess punishment under the correct range.
CONCLUSION
In Van Flowers’s appeal from Trial Court Case No. 15-DCR-070028B, we
affirm the trial court’s judgment as to his conviction but reverse the trial court’s
judgment as to his punishment and remand the cause to the trial court for a new
punishment hearing at which the trial court shall assess punishment within the
correct range of punishment, which is 10 to 99 years of imprisonment.
In Van Flowers’s appeal from Trial Court Case No. 15-DCR-070030, which
pertains to his conviction for aggravated robbery, he has not asserted any error with
14 respect to the trial court’s judgment. We therefore affirm the trial court’s judgment
in its entirety with respect to Van Flowers’s conviction for aggravated robbery.
Gordon Goodman Justice
Panel consists of Chief Justice Radack and Justices Goodman and Farris.
Publish. TEX. R. APP. P. 47.2(b).