James Bryan Fears v. the State of Texas

• Court: Court of Appeals of Texas
• Decided: June 30, 2023
• Docket: 05-22-00243-CR
• Status: Published

Opinion

AFFIRMED as MODIFIED and Opinion Filed June 30, 2023

S In The Court of Appeals Fifth District of Texas at Dallas No. 05-22-00243-CR

JAMES BRYAN FEARS, Appellant V. THE STATE OF TEXAS, Appellee

On Appeal from the 439th Judicial District Court Rockwall County, Texas Trial Court Cause No. 2-21-0769

MEMORANDUM OPINION Before Justices Pedersen, III, Goldstein, and Smith Opinion by Justice Goldstein Appellant James Bryan Fears appeals was convicted by a jury on one count

of manufacture or delivery of a controlled substance, methamphetamine, in the

amount of 4 grams or more but less than 200 grams. See TEX. HEALTH & SAFETY

CODE ANN. § 481.112(d). In a single issue, appellant complains that the trial court

erred when it admitted, during the punishment phase of his trial, evidence of a prior

conviction in which appellant pleaded guilty to a misdemeanor charge of assault–

family violence without the assistance of counsel. We affirm. On July 25, 2021, deputy sheriffs from the Rockwall County Sheriff’s Office

made contact with a vehicle that was stopped in the left-hand turn lane on Goliad

Street near I-30. A woman was in the driver’s seat, while appellant was in the front

passenger’s seat. When the deputy sheriffs approached the vehicle, one of them

noticed a glass pipe on the center console. Appellant admitted that he and the woman

had used the pipe to smoke marijuana. A search of the vehicle revealed a marijuana

grinder, a large amount of Ziploc-style plastic baggies, two scales, and

approximately forty grams of a crystalline substance. When the deputy sheriffs asked

appellant about the drugs, he admitted it was methamphetamine. Later testing

confirmed that the drugs were methamphetamine.

Appellant was charged by indictment for possession with the intent to deliver

a controlled substance in penalty group 1, namely methamphetamine, in the amount

of four grams or more but less than 200 grams. See TEX. HEALTH & SAFETY CODE

ANN. § 481.112(d). The indictment contained two enhancement paragraphs, each

alleging a prior felony conviction. Appellant pleaded not guilty to the charge and not

true to the enhancement paragraphs. Following a jury trial, appellant was found

guilty. During the punishment phase, the State offered evidence of several prior

convictions against appellant, including the two alleged in the indictment. One of

the non-alleged convictions was a 2000 Gregg County conviction for assault–family

violence in which appellant pleaded guilty without the assistance of counsel.

Records from the 2000 conviction were offered and admitted in evidence without

–2– objection by appellant. The jury found the alleged enhancement paragraphs true and

assessed punishment at thirty-five years’ confinement. The trial court entered a

judgment of conviction by jury, and this appeal followed.

In his sole issue, appellant asserts that the trial court erred in admitting the

records from the 2000 Gregg County conviction, averring:

Appellant’s constitutional and statutory rights to counsel and due process under the Fourth, Fifth, Sixth and Fourteenth Amendments of the U.S. Constitution, and Article I Sections 10, 15, and 19 of the Texas Constitution, and Section 1.051 of the Code of Criminal Procedure, were violated when, at the punishment hearing, the State introduced a previous conviction of the misdemeanor of assault/family violence, (SX 33, Appendix A) for which Appellant had no representation. Appellant is entitled to a new punishment hearing.

Appellant argues that because he was not represented by counsel in that case, the

admission of the records violates his constitutional and statutory rights to due

process and representation under the United States Constitution and the Texas

Constitution. The State responds that appellant waived this complaint for appeal. We

agree with the State.

The court of criminal appeals has held that an appellant may not collaterally

attack an uncounseled prior conviction for the first time on appeal unless the trial

court was given the opportunity to determine whether the prior conviction was

permissibly obtained. Hill v. State, 633 S.W.2d 520, 525 (Tex. Crim. App. 1981).

This rule applies to the admission of uncounseled prior convictions as evidence at

the punishment phase. Ex parte Russell, 738 S.W.2d 644, 647 (Tex. Crim. App.

1986) (“If a defendant wishes to complain on appeal about prior convictions –3– admitted as evidence during the punishment phase, he must make a timely objection

to the evidence or waive it … [e]ven when the prior conviction was uncounseled.”);

see also Joles v. State, No. 05-19-01324-CR, 2020 WL 7053504, at *3 (Tex. App.—

Dallas Dec. 2, 2020, no pet.) (mem. op., not designated for publication) (alleged

error of admission of an uncounseled prior conviction was waived because the

appellant failed to raise the issue at the trial level).

Here, the record reflects that appellant, through counsel, stated he had “no

objection” to the admission of the Gregg County conviction.1 Accordingly, he

waived the issue of its admittance for appeal. See Darcy, 488 S.W.3d at 329; Hill,

633 S.W.2d at 525; Russell, 738 S.W.2d at 647. We overrule appellant’s sole issue.

On our own review, we note that the judgment of conviction by jury contains

an error. Under “Punishment and Place of Confinement,” the judgment states:

“THIRTY (35) YEARS TEXAS DEPARTMENT OF CRIMINAL JUSTICE.” The

jury verdict assessed punishment at thirty-five years’ confinement. Similarly, the

trial court orally pronounced appellant’s sentence as thirty-five years’ “confinement

in the Institutional Division of the Texas Department of Criminal Justice.”

The Code of Criminal Procedure requires that the judgment accurately reflect

the term of a defendant’s sentence. See TEX. CODE CRIM. PROC. ANN. art. 42.01(15).

This Court “has the power to correct and reform the judgment of the court below to

1 It was offered by the state, as stipulated by the defense, and admitted by the trial court as stipulated, that even though pleading not true, he is one and the same individual in prior convictions. Nine such prior convictions were introduced and admitted. –4– make the record speak the truth when it has the necessary data and information to do

so.” Asberry v. State, 813 S.W.2d 526, 529 (Tex. App.—Dallas 1991, pet. ref’d);

accord Bigley v. State, 865 S.W.2d 26, 27–28 (Tex. Crim. App. 1993). Neither party

raised this issue, but our duty to make the record speak the truth “is not dependent

upon a request by either party.” See Asberry, 813 S.W.2d at 531. On our own motion,

we modify the judgment of conviction by jury to remove the words “THIRTY (35)

YEARS TEXAS DEPARTMENT OF CRIMINAL JUSTICE” and replace them

with “THIRTY-FIVE (35) YEARS; INSTITUTIONAL DIVISION, TEXAS

DEPARTMENT OF CRIMINAL JUSTICE.”

As modified, we affirm the trial court’s judgment.

/Bonnie Lee Goldstein/ BONNIE LEE GOLDSTEIN JUSTICE

Do Not Publish Tex. R. App. P. 47.2(b) 220243F.U05

–5– S Court of Appeals Fifth District of Texas at Dallas JUDGMENT

JAMES BRYAN FEARS, Appellant On Appeal from the 439th Judicial District Court, Rockwall County, No. 05-22-00243-CR V. Texas Trial Court Cause No. 2-21-0769. THE STATE OF TEXAS, Appellee Opinion delivered by Justice Goldstein. Justices Pedersen, III and Smith participating.

Based on the Court’s opinion of this date, the judgment of the trial court is MODIFIED as follows:

We REMOVE the words “THIRTY (35) YEARS TEXAS DEPARTMENT OF CRIMINAL JUSTICE” from the space next to “Punishment and Place of Confinement” and INSERT the words “THIRTY-FIVE (35) YEARS; INSTITUTIONAL DIVISION, TEXAS DEPARTMENT OF CRIMINAL JUSTICE”.

As REFORMED, the judgment is AFFIRMED.

Judgment entered this 30th day of June, 2023.

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