Jason Lumley v. State

• Court: Court of Appeals of Texas
• Decided: December 17, 2015
• Docket: 10-15-00267-CR
• Status: Published

Opinion

IN THE TENTH COURT OF APPEALS

No. 10-15-00267-CR

JASON LUMLEY, Appellant v.

THE STATE OF TEXAS, Appellee

From the County Court at Law Navarro County, Texas Trial Court No. D35606-CR

MEMORANDUM OPINION

Jason Lumley was indicted in Count 1 for evading arrest; in Count 2 for accident

involving injury; in Count 3 for accident involving injury; and in Count 4 for

unauthorized use of a motor vehicle. The indictment further alleged two enhancement

paragraphs. The jury convicted Lumley on all four counts. The trial court found the

enhancement paragraphs to be true and assessed punishment at 40 years confinement

in Count 1; at 50 years confinement in Count 2; at 50 years confinement in Count 3; and

at 455 days in a State Jail facility in Count 4. We affirm as modified. Background Facts

Charles Hosack was having mechanical problems with his truck, and Lumley

was helping with repairs on the truck. Hosack gave Lumley permission to drive the

truck to a nearby highway to determine the problems with the truck. Lumley exceeded

the permission given by Hosack when driving the vehicle and made one or more stops

while driving the vehicle. Undercover officers observed Lumley’s erratic driving and

began pursuing the vehicle. The officers attempted to stop the vehicle, but Lumley

failed to stop. Lumley struck two vehicles while fleeing from the officers’ pursuit.

Court Costs

In the first issue, Lumley argues that there is insufficient evidence to support the

trial court’s order for him to pay $249 in court costs. The trial court signed and entered

a judgment nunc pro tunc on October 9, 2015. In that judgment, the trial court ordered

Lumley to pay $249 in court costs. Lumley argues on appeal that because the clerk’s

record in this appeal does not contain a bill of costs, the trial court erred in entering a

specific amount of court costs to be paid by Lumley. In Johnson v. State, the Court held

that a specific amount of court costs need not be supported by a bill of costs in the

appellate record for a reviewing court to conclude that the assessed court costs are

supported by facts in the record. Johnson v. State, 423 S.W.3d 385, 395 (Tex. Crim. App.

2014). Therefore, we find that the trial court did not err in ordering Lumley to pay $249

in court costs.

Lumley v. State Page 2 Enhancement Paragraph

In the second issue, Lumley argues that the nunc pro tunc judgment should be

reformed to reflect the trial court’s finding on the enhancement paragraphs in Count 4.

In Count 4, Lumley was convicted of the offense of unauthorized use of a motor vehicle.

The record shows that the State did not seek enhancements as to Count 4, and the trial

court made a finding that the enhancement paragraphs did not apply to Count 4. The

nunc pro tunc judgment indicates a plea of not true to the enhancement paragraphs and

a finding of true on the enhancement paragraphs. The State agrees that the judgment

should be reformed to reflect the trial court’s findings on the enhancement paragraphs

for Count 4.

A court of appeals has the authority to correct and reform a judgment to make

the record speak the truth when it has the 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). Accordingly, we sustain

Lumley’s second issue on appeal and modify the trial court's judgment in Count 4 to

reflect “N/A” on the plea to the enhancement paragraphs and “N/A” on the findings

on the enhancements.

Degree of Offenses

In the third issue, Lumley argues that the nunc pro tunc judgments should be

reformed to correctly reflect the degree of the offenses in Counts 2 and 3. In Counts 2

and 3, Lumley was convicted of the offense of accident involving injury. TEX. TRANS.

CODE ANN. § 550. 021 (c) (2) (West Supp. 2014). The nunc pro tunc judgment reflects the

Lumley v. State Page 3 degree of offense as “hybrid felony.” The record shows the trial court considered and

understood the offense to be a felony of the third degree. The State agrees that the

judgment should be reformed to reflect that the offense in each count is a third degree

felony.

A court of appeals has the authority to correct and reform a judgment to make

the record speak the truth when it has the information to do so. TEX. R. APP. P. 43.2(b);

Bigley v. State, 865 S.W.2d at 27-28. Accordingly, we sustain Lumley’s third issue on

appeal and modify the trial court's judgment to reflect that in Counts 2 and 3 the degree

of offense is a third degree felony.

Conclusion

Based on the foregoing, we modify the trial court's judgment to reflect that

Counts 2 and 3 are both a third degree felony. We further modify the judgment to

reflect in Count 4 “N/A” on the plea to the enhancement paragraphs and “N/A” on the

findings on the enhancements. We affirm the judgments as modified in all other

respects.

AL SCOGGINS Justice

Lumley v. State Page 4 Before Chief Justice Gray, Justice Davis, and Justice Scoggins Modified and Affirmed Opinion delivered and filed December 17, 2015 Do not publish [CR PM]

Lumley v. State Page 5