AFFIRMED as MODIFIED and Opinion Filed August 19, 2024
S In The Court of Appeals Fifth District of Texas at Dallas No. 05-23-00315-CR
GERALD PIERCE, Appellant V. THE STATE OF TEXAS, Appellee
On Appeal from the Criminal District Court No. 2 Dallas County, Texas Trial Court Cause No. F14-75438-I
MEMORANDUM OPINION Before Justices Molberg, Pedersen, III, and Goldstein Opinion by Justice Molberg Gerald Pierce appeals a judgment adjudicating his guilt and sentencing him to
twenty-five years’ confinement in the Texas Department of Criminal Justice’s
Institutional Division on a charge of assault family violence with a prior conviction,
as enhanced by two prior felony convictions.1 See TEX. PENAL CODE §§ 12.42(d),
1 The indictment’s two enhancement paragraphs alleged: And it is further presented to said Court that prior to the commission of the offense or offenses set out above, the defendant was finally convicted of the felony offense of POSSESSION OF A CONTROLLED SUBSTANCE, in the 195TH JUDICIAL DISTRICT COURT of DALLAS County, Texas, in Cause Number F0955574, on the 18TH day of MAY, A.D., 2010, 22.01(b)(2)(A). Claiming error not in the adjudication of his guilt but instead in his
sentence, Pierce argues the trial court erred in sentencing him to twenty-five years’
confinement rather than ten and argues the judgment contains numerous errors that
should be corrected. The State disputes Pierce’s argument regarding his sentence
but agrees the judgment contains errors that should be corrected. Based on the record
before us, we find no error in imposing the twenty-five year sentence and find the
requested corrections in the judgment to be justified. We therefore affirm the
judgment as modified below in this memorandum opinion.2
I. BACKGROUND
On April 29, 2014, a grand jury indicted Pierce for assault family violence
with a prior family violence conviction, as enhanced by two prior felony convictions.
See TEX. PENAL CODE §§ 12.42(d), 22.01(b)(2)(A). On August 1, 2014, Pierce
pleaded guilty to the charge, pleaded true to the enhancement paragraphs,3 and
And that prior to the commission of the offense or offenses for which the defendant was convicted as set out above, the defendant was finally convicted of the felony offense of AGGRAVATED ASSAULT, in the 204TH JUDICIAL DISTRICT COURT of DALLAS County, Texas, in Cause Number F0272696, on the 23RD day of JANUARY, A.D., 2004[.] 2 See TEX. R. APP. P. 47.4. 3 The reporter’s record from the plea proceeding includes the following exchange: THE COURT: How do you plead to the charges against you, guilty or not guilty? [PIERCE]: Guilty. THE COURT: And to the enhancement counts, how do you plead, true or not true? [PIERCE]: True. After the trial court then explained the effect of such a plea on his possible sentence, Pierce re- confirmed his desire to plead guilty to the charged offense and to plead true to the two enhancement paragraphs, as reflected in this exchange:
–2– signed a judicial confession.4 Judge Richard Davis, the trial judge who presided
over the plea proceeding, deferred adjudication of guilt, found the two enhancement
paragraphs to be true, placed Pierce on eight years’ community supervision, and
assessed a $2,000 fine.
The order of deferred adjudication was signed by Judge Don Adams on
August 5, 2014. The order deferred adjudication of Pierce’s guilt, placed Pierce on
a period of community supervision for eight years, and imposed a $2,000 fine plus
$249 in court costs. Attached to the order were three pages entitled “Conditions of
Community Supervision” which listed twenty-one conditions of community
supervision in paragraphs (a) through (u).
The order of deferred adjudication did not, however, contain any information
about Pierce’s plea of true to the two enhancement paragraphs. Specifically, the
order stated, in part:
Plea to 1st Enhancement N/A Plea to 2nd Enhancement N/A Paragraph Paragraph
THE COURT: So having had all of these things explained to you, do you still wish to enter a plea of guilty to the charge of assault family violence? [PIERCE]: Yes, Your Honor. THE COURT: And do you still wish to enter a plea of true to the enhancement paragraphs? [PIERCE]: Yes, Your Honor. 4 The judicial confession contained the full text of the offense and two enhancement paragraphs alleged in the indictment. By signing it, Pierce judicially confessed to the facts alleged, stipulated that they “are true and correct and constitute evidence in this case,” and judicially confessed that he “committed the offense with which [he stands] charged exactly as alleged in the indictment in this cause.” –3– Years passed. In 2019, about five years into Pierce’s eight-year period of
community supervision, the State filed an amended motion to revoke probation or
proceed with an adjudication of guilt. In its amended motion, the State alleged
Pierce violated ten of his community supervision conditions—namely, conditions
(a), (a), (b), (d), (h), (j), (k), (m), (n), and (r).5
The trial court heard the State’s amended motion to revoke probation or
proceed with an adjudication of guilt in August 2022. Judge Nancy Kennedy
presided.6 During the hearing, Pierce pleaded “not true” to the violations alleged in
the State’s amended motion. Eleven witnesses testified in total.
During the testimony of the sixth witness, the trial court announced a brief
recess, and Pierce did not return to the courtroom after the short break in
proceedings. Upon the State’s request, and over Pierce’s counsel objection, Judge
Kennedy held Pierce’s bond insufficient, determined Pierce had waived his right to
testify, denied Pierce’s counsel’s request to pause the proceedings, and issued a
warrant for Pierce to be obtained. The hearing continued in Pierce’s absence, and
after both sides rested and closed, Judge Kennedy found “true” the allegations in
paragraphs (a), (a), (b), and (d) of the State’s amended motion.7
5 The State’s amended motion contained two paragraphs listed as paragraph (a). Each contained separate allegations. 6 Judge Kennedy is now a Justice on this Court and has taken no part in the proceedings in our Court. 7 Also during the hearing on the State’s amended motion, the State abandoned its allegations in paragraphs (h), (j), (k), (m), (n), and (r). –4– After both sides indicated they had no further evidence to present for
sentencing purposes, each side made a closing argument on sentencing. In its
closing, the State noted some discrepancies in the record regarding Pierce’s plea to
the enhancement paragraphs, stating that, while a check box regarding enhancement
paragraphs was left unchecked on page three of Pierce’s plea paperwork,8 there were
other indications in the record that Pierce pleaded true to the enhancement
paragraphs in the indictment.
In the closing by Pierce’s counsel, his counsel appeared to agree there were
some indications in the record that Pierce pleaded true to the indictment’s two
enhancement paragraphs, stating that while the trial court should take into account
the unchecked enhancement paragraph box in the plea paperwork, “there is a
notation on the docket sheet concerning the enhancement paragraphs, so I think
that’s something that the [trial] [c]ourt will have to resolve.”9
The State argued for a prison sentence, while Pierce’s counsel asked that the
court consider continuing Pierce on probation, with up to 180 days in jail as a
8 The trial court’s admonitions to Pierce in connection with his plea stated, in part:
9 In an August 1, 2024 entry, the docket sheet states, “Enhancement paragraphs found true on plea of true and after hearing.” –5– condition of probation, a result Pierce’s counsel described as a “better option for the
[trial] [c]ourt than to sentence him to [twenty-five] years.”
Judge Kennedy then stated:
So the docket sheet is not part – part of the record. . . .
The judgment itself from 2014 indicates that there is no finding, no plea of true, no finding of true; there’s never been a request for the judgment to be modified in a nunc. There’s this proceeding began, and I’ve had no request prior to that to modify that judgment. So therefore, I’m operating under that previous judgment that this is a third degree that Mr. Pierce is on probation for.
At this time, after finding that the allegations are true, I’m going to set aside the order that originally placed him on deferred, I’m going to find him guilty at this time of the assault bodily injury family violence enhanced as he pled guilty to it back in 2014, and I am going to sentence him to ten years in the Institutional Division of the Texas Department of Criminal Justice.
That sentence will start today. I understand that he is not present. A warrant has been issued for him. He will get credit for any back-time that he does have and I will go from there.
....
Any legal reason why I should not impose sentence at this time?
[PIERCE’S COUNSEL]: No, Your Honor.
THE COURT: It is therefore the order, judgment and decree of the Court that after finding the allegations remaining in the motion true, I’m setting aside the order that originally placed him on deferred finding him guilty at this time of the offense he pled guilty to and sentencing him to ten years in the Institutional Division of the Texas Department of Criminal Justice. There is an affirmative finding of family violence.
Judge Kennedy then adjourned the proceedings but reconvened three days
later. Pierce was not present. After the trial court reviewed the circumstances during –6– the last proceeding, including Pierce’s appearance and subsequent absence, the trial
court seemed at one point to rescind the previously-announced sentence but then
concluded with the following comments:
THE COURT: He still has a ten-year sentence. I’m just not legally imposing it at this point because he’s not present. Right?
[PROSECUTOR]: Right.
[PIERCE’S COUNSEL]: Correct.
On February 20, 2023, about six months after the proceedings before Judge
Kennedy, the State and Pierce’s counsel again appeared in the trial court for
imposition of sentence. Pierce was present this time, and Judge Don Adams
presided.10 During the proceeding, Pierce acknowledged being informed that there
are enhancement paragraphs which could potentially make the punishment range of
twenty-five years to life. He also acknowledged being informed that the State would
give him ten years if Pierce would accept ten years and testified he was rejecting that
“offer.”
Judge Adams stated:
I have reviewed the documents here. Apparently you pled guilty to the – you pled guilty – back on August 1, 2014, you pled guilty and also true to the enhancement paragraphs, and the judge wrote on the docket sheet “finding the family violence enhancement paragraphs that were true.”
So, because of that, the Court will go ahead and pronounce the sentence of 25 years of confinement in the Institutional Division.
10 Justice Kennedy joined our Court on January 1, 2023. –7– Judge Adams then signed the judgment adjudicating guilt that is at issue in
this appeal and certified Pierce’s right to appeal.
II. ISSUES AND ANALYSIS
A. Alleged Error in Sentencing
In his first issue, Pierce argues the trial court erred in sentencing him to
twenty-five years’ confinement rather than ten and asks that we reform the judgment
to reflect a sentence of ten years. The State disputes this and urges us to affirm.
The trial court has wide latitude to determine the appropriate sentence in each
case. Tapia v. State, 462 S.W.3d 29, 46 (Tex. Crim. App. 2015). “We cannot step
into the shoes of the trial court judge and substitute our judgment for [his] unless
that judge has clearly abused [his] discretion.” Id. We may not disturb a trial court’s
decision on an issue within its discretion unless the decision was arbitrary or
unreasonable and was outside the zone of reasonable disagreement. See State v. Hill,
499 S.W.3d 853, 865 (Tex. Crim. App. 2016); Johnson v. State, 490 S.W.3d 895,
908 (Tex. Crim. App. 2016).
The crux of the parties’ disagreement regarding Pierce’s sentence has to do
with whether the twenty-five year sentence Pierce received was required by the
record in this case, as the State argues,11 or was void, as Pierce argues, because of
11 The State argues that, because the record affirmatively reflects Pierce entered a plea of true to the enhancement paragraphs, Judge Davis found the enhancement paragraphs to be true, and Judge Kennedy adjudicated Pierce guilty after finding he violated his conditions of probation, the mandatory minimum sentence authorized by statute in this case is twenty-five years imprisonment. –8– (1) the omission in the order of deferred adjudication of any information about the
indictment’s two enhancement paragraphs, (2) Judge Kennedy’s announced-but-
not-imposed sentence that was based on that omission, and (3) Judge Adams’
reference to the information contained in the docket sheet.
We agree with the State. Penal Code § 12.42(d) requires that, except in
situations not applicable here, if it is shown on the trial of the charged felony offense
that Pierce has previously been finally convicted of two felony offenses, and the
second previous felony conviction is for an offense that occurred subsequent to the
first previous conviction having become final, “on conviction [Pierce] shall be
punished by [TDCJ] imprisonment . . . for life, or for any term of not more than 99
years or less than 25 years.” See TEX. PENAL CODE § 12.42(d) (emphasis added).12
Here, the “conviction” occurred in connection with the judgment adjudicating
guilt, not in the earlier order of deferred adjudication. Under the Code of Criminal
Procedure, a trial court may, “after receiving a plea of guilty or nolo contendere,
hearing the evidence, and finding that it substantiates the defendant’s guilt, defer
12 Texas Penal Code § 12.42 states, in part: (d) Except as provided by Subsection (c)(2) or (c)(4),[ ] if it is shown on the trial of a felony offense other than a state jail felony punishable under Section 12.35(a) that the defendant has previously been finally convicted of two felony offenses, and the second previous felony conviction is for an offense that occurred subsequent to the first previous conviction having become final, on conviction the defendant shall be punished by imprisonment in the Texas Department of Criminal Justice for life, or for any term of not more than 99 years or less than 25 years. A previous conviction for a state jail felony punishable under Section 12.35(a) may not be used for enhancement purposes under this subsection.”
TEX. PENAL CODE § 12.42(d). –9– further proceedings without entering an adjudication of guilt and place the defendant
on deferred adjudication community supervision.” TEX. CODE CRIM. PROC. art.
42A.101(a). “For most purposes, a deferred adjudication does not count as a
conviction” because a conviction generally involves the adjudication of guilt, which
is specifically deferred when a court orders deferred adjudication. Middleton v.
State, 634 S.W.3d 46, 50 (Tex. Crim. App. 2021).
Based on the record before us, it is undisputed Pierce pleaded true to the two
enhancement paragraphs and Judge Davis found those paragraphs to be true. Thus,
when the trial court later adjudicated Pierce’s guilt, the mandatory operation of
section 12.42(d) restricted the trial court’s discretion in sentencing and required a
minimum sentence of twenty-five years. See TEX. PENAL CODE § 12.42(d); State v.
Allen, 865 S.W.2d 472, 474 (Tex. Crim. App. 1993) (”Once the two prior felony
convictions are found to be true, the mandatory operation of Section 12.42(d)
restricts the discretion of the sentencing authority.”).
We are not persuaded by Pierce’s argument that the enhancement-related
omissions in the order of deferred adjudication make Pierce’s twenty-five year
sentence void because his argument ignores the distinction between an order of
deferred adjudication and a judgment. While Pierce’s premise—that a judgment
controls over other portions of the record such as the docket sheet—is largely
–10– correct,13 his application of that premise to this case is misplaced, as it equates an
order of deferred adjudication with a judgment, and the two documents are not the
same. See Zapata v. State, 678 S.W.3d 325, 328 (Tex. App.—San Antonio 2023,
pet. granted) (noting that an adjudication of guilt is specifically deferred when a
court orders deferred adjudication and concluding that the order of deferred
adjudication in that case was not a judgment that required the trial court to enter an
affirmative finding of family violence).
Based on the record before us and the authorities cited above, we cannot
conclude the trial court erred in imposing the twenty-five year sentence.
We overrule Pierce’s first issue.
B. Alleged Errors in Judgment
In his second issue, Pierce argues the judgment adjudicating guilt contains
numerous errors that should be corrected. Specifically, he argues the judgment
should be corrected to reflect that (1) Pierce pleaded “not true” to the allegations in
the State’s amended motion to adjudicate; (2) there was no plea bargain in the
adjudication process; and (3) the trial court only found “true” the allegations in parts
(a), (a), (b), and (d) of the State’s amended motion to adjudicate.
The State agrees with Pierce’s arguments as to numbers (1) and (3) and has
not disputed or responded to his argument regarding number (2). The State also
13 See Flores v. State, 524 S.W.2d 71, 72 (Tex. Crim. App. 1978) (“[T]he judgment controls over recitations made on the court’s docket when there is a conflict between them.”). –11– argues two other modifications are needed, namely, by adding that the trial court
found true the two enhancement paragraphs alleged in the indictment, and by adding
an affirmative finding of family violence. Pierce did not file a reply to the State’s
brief and has taken no position with regard to the State’s requested modifications,
aside from his arguments in connection with his first issue.
We may modify the trial court’s judgment to make the record speak the truth
when we have the necessary information to do so. 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) (en banc).
The record before us reveals that all five of the parties’ requested
modifications are appropriate. As to Pierce’s three requested changes, the reporter’s
record shows Pierce pleaded “not true” to the allegations made in the State’s
amended motion to adjudicate, there was no plea bargain in the adjudication process,
and the trial court only found “true” the allegations in parts (a), (a), (b), and (d) of
the State’s amended motion to adjudicate. As to the State’s two requested changes,
the reporter’s record also shows that during the proceeding on the State’s amended
motion to adjudicate guilt, the trial court took judicial notice of the entire contents
of the file, which included the April 29, 2014 indictment that included two
enhancement paragraphs and Pierce’s August 1, 2014 judicial confession, in which
he confessed he “committed the offense with which I stand charged exactly as
alleged in the indictment in this cause.” Finally, the reporter’s record includes the
–12– transcript from the hearing on the State’s amended motion to adjudicate guilt, and in
it, the trial court made an affirmative finding of family violence. Thus, we sustain
Pierce’s second issue to the extent that we reform the judgment as described below.
III. CONCLUSION
For the reasons explained above, we reform the judgment by making the
following modifications:
(1) Under the text stating “Plea to Motion to Adjudicate,” we delete the word “TRUE” and replace it with the phrase “NOT TRUE,”
(2) Under the text stating “Terms of Plea Bargain,” we delete the phrase “25 YEARS TDC” and replace it with “N/A,”
(3) After the text stating “Defendant violated the conditions of community supervision, as set out in the State’s AMENDED Motion to Adjudicate Guilt, as follows” we delete the text stating “A A B D H J K M N R” and replace it with text stating “A A B D,”
(4) In the last paragraph of the first page of the judgment, we delete the text stating, “(2) The Court deferred further proceedings, made no finding of guilt, and rendered no judgment” and replace it with text stating, “(2) The Court found “true” the two enhancements paragraphs alleged in the indictment, deferred further proceedings, made no finding of guilt, and rendered no judgment;” and
(5) Adding on page 2 of the judgment, after the text stating “Furthermore, the following special findings or orders apply,” text stating, “The Court affirmatively finds that the offense involved family violence, as defined by Section 71.004, Family Code.”
As reformed, we affirm the judgment.
/Ken Molberg/ KEN MOLBERG Do Not Publish JUSTICE TEX. R. APP. P. 47.2(b) 230315F.U05 –13– S Court of Appeals Fifth District of Texas at Dallas JUDGMENT
GERALD PIERCE, Appellant On Appeal from the Criminal District Court No. 2, Dallas County, Texas No. 05-23-00315-CR V. Trial Court Cause No. F14-75438-I. Opinion delivered by Justice THE STATE OF TEXAS, Appellee Molberg. Justices Pedersen, III and Goldstein participating.
Based on the Court’s opinion of this date, the judgment of the trial court is MODIFIED as follows:
(1) Under the text stating “Plea to Motion to Adjudicate,” we delete the word “TRUE” and replace it with the phrase “NOT TRUE,”
(2) Under the text stating “Terms of Plea Bargain,” we delete the phrase “25 YEARS TDC” and replace it with “N/A,”
(3) After the text stating “Defendant violated the conditions of community supervision, as set out in the State’s AMENDED Motion to Adjudicate Guilt, as follows” we delete the text stating “A A B D H J K M N R” and replace it with text stating “A A B D,”
(4) In the last paragraph of the first page of the judgment, we delete the text stating, “(2) The Court deferred further proceedings, made no finding of guilt, and rendered no judgment” and replace it with text stating, “(2) The Court found “true” the two enhancements paragraphs alleged in the indictment, deferred further proceedings, made no finding of guilt, and rendered no judgment;” and
(5) Adding on page 2 of the judgment, after the text stating “Furthermore, the following special findings or orders apply,” text
–14– stating, “The Court affirmatively finds that the offense involved family violence, as defined by Section 71.004, Family Code.”
As REFORMED, the judgment is AFFIRMED.
Judgment entered this 19th day of August, 2024.
–15–