Affirmed as Reformed and Opinion Filed January 29, 2024
In The Court of Appeals Fifth District of Texas at Dallas Nos. 05-22-01264-CR 05-22-01265-CR 05-22-01266-CR 05-22-01267-CR 05-22-01268-CR
KEITH GASTON, Appellant V. THE STATE OF TEXAS, Appellee
On Appeal from the 292nd Judicial District Court Dallas County, Texas Trial Court Cause Nos. F20-37243-V; F21-34003-V; F21-34645-V; F21-34004- V; and F20-37245-V
MEMORANDUM OPINION Before Justices Pedersen, III, Garcia, and Kennedy Opinion by Justice Pedersen, III Appellant brings one appellate issue, arguing the trial court’s judgments
should be modified to reflect that he entered plea-bargain agreements with the State.
We sustain appellant’s issue and affirm the trial court’s judgments as reformed. BACKGROUND
The grand jury indicted appellant with five offenses: possession of
methamphetamine, possession with intent to deliver methamphetamine, possession
with intent to deliver phencyclidine, possession with intent to deliver cocaine, and
possession of cocaine. At a November 21, 2022 plea hearing, the trial court accepted
appellant’s plea of guilty in all five cases, reviewed exhibits, and heard testimony
and argument. The trial court sentenced appellant to confinement of eighteen months
for possession of cocaine, five years for possession of methamphetamine, and twelve
years each for manufacture with intent to deliver methamphetamine, phencyclidine,
and cocaine. The trial court ordered the sentences be served concurrently. The trial
court stated appellant had the right to appeal all his cases and signed certifications
of appellant’s right to appeal.
The trial court’s judgments in appellant’s cases reflect appellant entered
“guilty” and “open” pleas.
JUDGMENT MODIFICATION
Appellant argues, “Appellant contends the judgment should be reformed to
properly reflect that appellant pleaded guilty with a plea bargain agreement.” The
State concedes, “Appellant’s judgments should be reformed to indicate that
Appellant entered into a plea-bargain agreement with the State.”
–2– Applicable Law
This Court has power to modify an incorrect judgment to make the record
speak the truth when it has necessary information before it to do so. See TEX. R. APP.
P. 43.2(b); Bigley v. State, 865 S.W.2d 26, 27–28 (Tex. Crim. App. 1993); Taylor v.
State, No. 05-20-00017-CR, 2022 WL 17335689, at *14 (Tex. App.—Dallas Nov.
30, 2022, pet. ref’d) (mem. op., not designated for publication); Asberry v. State, 813
S.W.2d 526, 529–30 (Tex. App.—Dallas 1991, pet. ref’d) (en banc). This Court has
power to correct judgments to reflect that appellant entered into plea-bargain
agreements with the State. See Burton v. State, No. 05-18-00608-CR, 2019 WL
3543580, at *6–7 (Tex. App.—Dallas Aug. 5, 2019, no pet.) (mem. op., not
designated for publication) (modifying “open plea” language in trial court’s
judgments to reflect terms of plea agreements).
An “open plea” of guilty can imply absence of any bargaining between the
State and a defendant. See Harper v. State, 567 S.W.3d 450, 454 (Tex. App.—Fort
Worth 2019, no pet.). However, an open plea of guilty in some instances has been
defined as involving a plea where charge bargaining, but not sentence bargaining,
has occurred. See id. (citing Kassube v. State, No. 12-08-00364-CR, 2010 WL
697362, at *2 n.3 (Tex. App.—Tyler Feb. 26, 2010, no pet.) (mem. op., not
designated for publication)). A “charge bargain” guilty-plea agreement involves
questions of whether a defendant “will plead guilty to the offense that has been
alleged or to a lesser or related offenses, and of whether the prosecutor will dismiss,
–3– or refrain from bringing, other charges.’” See Thomas v. State, 516 S.W.3d 498, 502
(Tex. Crim. App. 2017) (explaining sentence bargains and charge bargains).
Analysis
We examine the entire record to determine whether we have necessary data
and information to modify judgments. See Mack v. State, No. 05-17-01270–CV,
2008 WL 2429317, at *2 (Tex. App.—Dallas June 17, 2008, no pet.) (mem. op., not
designated for publication). The record before us demonstrates appellant’s plea
agreements provide for concurrent sentencing. Moreover, in appellant’s plea
hearing, the trial court stated appellant had entered plea bargains. The trial court
stated the State had filed a motion to strike enhancement paragraphs from the
indictments, thus affecting punishment ranges. Appellant acknowledged the State’s
motion to strike was “by way of plea bargain.” The trial court confirmed the parties
did not agree to punishment ranges. The trial court stated, “So this is an open plea,
and, Mr. Gatson (sic), what that means is in all of these cases I have the full range
of punishment available to me.” The trial court confirmed appellant signed the “plea
bargain agreement[s].” Consistent with the plea agreements, the trial court held from
the bench that appellant would serve his sentences concurrently. The State argues
the record of the plea hearing reflects appellant entered into “charge-bargain plea
agreements” due to the State’s agreement to strike enhancement paragraphs. See
Thomas, 516 S.W.3d at 502. Moreover, the State argues the clerk’s records
demonstrate the parties agreed to concurrent sentences.
–4– After reviewing the entire record, we conclude we have necessary data and
information to modify the judgments as appellant and the State request. See Mack,
2008 WL 2429317, at *2. We conclude appellant and the State entered into charge-
bargain plea agreements. See Thomas, 516 S.W.3d at 502.
Although appellant seeks modification of the judgments, he additionally
requests that we reverse the judgments and remand the cases for new trial. He cites
no legal authority for his additional request. Rather, we follow well-settled law,
addressed above, and affirm the trial court’s judgments as reformed.
We sustain appellant’s sole issue on appeal.
CONCLUSION
We modify the five trial court judgments now before us to delete the words
“OPEN PLEA” from each judgment and to substitute the words “PLEA-BARGAIN
AGREEMENT” in their place. We affirm the judgments as reformed.
/Bill Pedersen, III/ 221264f.u05 BILL PEDERSEN, III 221265f.u05 JUSTICE 221266f.u05 221267f.u05 221268f.u05 Do Not Publish TEX. R. APP. P. 47.2(b)
–5– Court of Appeals Fifth District of Texas at Dallas JUDGMENT
KEITH GASTON, Appellant On Appeal from the 292nd Judicial District Court, Dallas County, Texas No. 05-22-01264-CR V. Trial Court Cause No. F20-37243-V. Opinion delivered by Justice THE STATE OF TEXAS, Appellee Pedersen, III. Justices Garcia and Kennedy participating.
Based on the Court’s opinion of this date, the judgment of the trial court is MODIFIED as follows:
The words “OPEN PLEA” shall be deleted from the trial court’s judgment and the words “PLEA-BARGAIN AGREEMENT” shall be substituted in their place.
As REFORMED, the judgment is AFFIRMED.
Judgment entered this 29th day of January, 2024.
–6– Court of Appeals Fifth District of Texas at Dallas JUDGMENT
KEITH GASTON, Appellant On Appeal from the 292nd Judicial District Court, Dallas County, Texas No. 05-22-01265-CR V. Trial Court Cause No. F21-34003-V.
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Affirmed as Reformed and Opinion Filed January 29, 2024
In The Court of Appeals Fifth District of Texas at Dallas Nos. 05-22-01264-CR 05-22-01265-CR 05-22-01266-CR 05-22-01267-CR 05-22-01268-CR
KEITH GASTON, Appellant V. THE STATE OF TEXAS, Appellee
On Appeal from the 292nd Judicial District Court Dallas County, Texas Trial Court Cause Nos. F20-37243-V; F21-34003-V; F21-34645-V; F21-34004- V; and F20-37245-V
MEMORANDUM OPINION Before Justices Pedersen, III, Garcia, and Kennedy Opinion by Justice Pedersen, III Appellant brings one appellate issue, arguing the trial court’s judgments
should be modified to reflect that he entered plea-bargain agreements with the State.
We sustain appellant’s issue and affirm the trial court’s judgments as reformed. BACKGROUND
The grand jury indicted appellant with five offenses: possession of
methamphetamine, possession with intent to deliver methamphetamine, possession
with intent to deliver phencyclidine, possession with intent to deliver cocaine, and
possession of cocaine. At a November 21, 2022 plea hearing, the trial court accepted
appellant’s plea of guilty in all five cases, reviewed exhibits, and heard testimony
and argument. The trial court sentenced appellant to confinement of eighteen months
for possession of cocaine, five years for possession of methamphetamine, and twelve
years each for manufacture with intent to deliver methamphetamine, phencyclidine,
and cocaine. The trial court ordered the sentences be served concurrently. The trial
court stated appellant had the right to appeal all his cases and signed certifications
of appellant’s right to appeal.
The trial court’s judgments in appellant’s cases reflect appellant entered
“guilty” and “open” pleas.
JUDGMENT MODIFICATION
Appellant argues, “Appellant contends the judgment should be reformed to
properly reflect that appellant pleaded guilty with a plea bargain agreement.” The
State concedes, “Appellant’s judgments should be reformed to indicate that
Appellant entered into a plea-bargain agreement with the State.”
–2– Applicable Law
This Court has power to modify an incorrect judgment to make the record
speak the truth when it has necessary information before it to do so. See TEX. R. APP.
P. 43.2(b); Bigley v. State, 865 S.W.2d 26, 27–28 (Tex. Crim. App. 1993); Taylor v.
State, No. 05-20-00017-CR, 2022 WL 17335689, at *14 (Tex. App.—Dallas Nov.
30, 2022, pet. ref’d) (mem. op., not designated for publication); Asberry v. State, 813
S.W.2d 526, 529–30 (Tex. App.—Dallas 1991, pet. ref’d) (en banc). This Court has
power to correct judgments to reflect that appellant entered into plea-bargain
agreements with the State. See Burton v. State, No. 05-18-00608-CR, 2019 WL
3543580, at *6–7 (Tex. App.—Dallas Aug. 5, 2019, no pet.) (mem. op., not
designated for publication) (modifying “open plea” language in trial court’s
judgments to reflect terms of plea agreements).
An “open plea” of guilty can imply absence of any bargaining between the
State and a defendant. See Harper v. State, 567 S.W.3d 450, 454 (Tex. App.—Fort
Worth 2019, no pet.). However, an open plea of guilty in some instances has been
defined as involving a plea where charge bargaining, but not sentence bargaining,
has occurred. See id. (citing Kassube v. State, No. 12-08-00364-CR, 2010 WL
697362, at *2 n.3 (Tex. App.—Tyler Feb. 26, 2010, no pet.) (mem. op., not
designated for publication)). A “charge bargain” guilty-plea agreement involves
questions of whether a defendant “will plead guilty to the offense that has been
alleged or to a lesser or related offenses, and of whether the prosecutor will dismiss,
–3– or refrain from bringing, other charges.’” See Thomas v. State, 516 S.W.3d 498, 502
(Tex. Crim. App. 2017) (explaining sentence bargains and charge bargains).
Analysis
We examine the entire record to determine whether we have necessary data
and information to modify judgments. See Mack v. State, No. 05-17-01270–CV,
2008 WL 2429317, at *2 (Tex. App.—Dallas June 17, 2008, no pet.) (mem. op., not
designated for publication). The record before us demonstrates appellant’s plea
agreements provide for concurrent sentencing. Moreover, in appellant’s plea
hearing, the trial court stated appellant had entered plea bargains. The trial court
stated the State had filed a motion to strike enhancement paragraphs from the
indictments, thus affecting punishment ranges. Appellant acknowledged the State’s
motion to strike was “by way of plea bargain.” The trial court confirmed the parties
did not agree to punishment ranges. The trial court stated, “So this is an open plea,
and, Mr. Gatson (sic), what that means is in all of these cases I have the full range
of punishment available to me.” The trial court confirmed appellant signed the “plea
bargain agreement[s].” Consistent with the plea agreements, the trial court held from
the bench that appellant would serve his sentences concurrently. The State argues
the record of the plea hearing reflects appellant entered into “charge-bargain plea
agreements” due to the State’s agreement to strike enhancement paragraphs. See
Thomas, 516 S.W.3d at 502. Moreover, the State argues the clerk’s records
demonstrate the parties agreed to concurrent sentences.
–4– After reviewing the entire record, we conclude we have necessary data and
information to modify the judgments as appellant and the State request. See Mack,
2008 WL 2429317, at *2. We conclude appellant and the State entered into charge-
bargain plea agreements. See Thomas, 516 S.W.3d at 502.
Although appellant seeks modification of the judgments, he additionally
requests that we reverse the judgments and remand the cases for new trial. He cites
no legal authority for his additional request. Rather, we follow well-settled law,
addressed above, and affirm the trial court’s judgments as reformed.
We sustain appellant’s sole issue on appeal.
CONCLUSION
We modify the five trial court judgments now before us to delete the words
“OPEN PLEA” from each judgment and to substitute the words “PLEA-BARGAIN
AGREEMENT” in their place. We affirm the judgments as reformed.
/Bill Pedersen, III/ 221264f.u05 BILL PEDERSEN, III 221265f.u05 JUSTICE 221266f.u05 221267f.u05 221268f.u05 Do Not Publish TEX. R. APP. P. 47.2(b)
–5– Court of Appeals Fifth District of Texas at Dallas JUDGMENT
KEITH GASTON, Appellant On Appeal from the 292nd Judicial District Court, Dallas County, Texas No. 05-22-01264-CR V. Trial Court Cause No. F20-37243-V. Opinion delivered by Justice THE STATE OF TEXAS, Appellee Pedersen, III. Justices Garcia and Kennedy participating.
Based on the Court’s opinion of this date, the judgment of the trial court is MODIFIED as follows:
The words “OPEN PLEA” shall be deleted from the trial court’s judgment and the words “PLEA-BARGAIN AGREEMENT” shall be substituted in their place.
As REFORMED, the judgment is AFFIRMED.
Judgment entered this 29th day of January, 2024.
–6– Court of Appeals Fifth District of Texas at Dallas JUDGMENT
KEITH GASTON, Appellant On Appeal from the 292nd Judicial District Court, Dallas County, Texas No. 05-22-01265-CR V. Trial Court Cause No. F21-34003-V. Opinion delivered by Justice THE STATE OF TEXAS, Appellee Pedersen, III. Justices Garcia and Kennedy participating.
Based on the Court’s opinion of this date, the judgment of the trial court is MODIFIED as follows:
The words “OPEN PLEA” shall be deleted from the trial court’s judgment and the words “PLEA-BARGAIN AGREEMENT” shall be substituted in their place.
–7– Court of Appeals Fifth District of Texas at Dallas JUDGMENT
KEITH GASTON, Appellant On Appeal from the 292nd Judicial District Court, Dallas County, Texas No. 05-22-01266-CR V. Trial Court Cause No. F21-34645-V. Opinion delivered by Justice THE STATE OF TEXAS, Appellee Pedersen, III. Justices Garcia and Kennedy participating.
Based on the Court’s opinion of this date, the judgment of the trial court is MODIFIED as follows:
The words “OPEN PLEA” shall be deleted from the trial court’s judgment and the words “PLEA-BARGAIN AGREEMENT” shall be substituted in their place.
–8– Court of Appeals Fifth District of Texas at Dallas JUDGMENT
KEITH GASTON, Appellant On Appeal from the 292nd Judicial District Court, Dallas County, Texas No. 05-22-01267-CR V. Trial Court Cause No. F21-34004-V. Opinion delivered by Justice THE STATE OF TEXAS, Appellee Pedersen, III. Justices Garcia and Kennedy participating.
Based on the Court’s opinion of this date, the judgment of the trial court is MODIFIED as follows:
The words “OPEN PLEA” shall be deleted from the trial court’s judgment and the words “PLEA-BARGAIN AGREEMENT” shall be substituted in their place.
–9– Court of Appeals Fifth District of Texas at Dallas JUDGMENT
KEITH GASTON, Appellant On Appeal from the 292nd Judicial District Court, Dallas County, Texas No. 05-22-01268-CR V. Trial Court Cause No. F20-37245-V. Opinion delivered by Justice THE STATE OF TEXAS, Appellee Pedersen, III. Justices Garcia and Kennedy participating.
Based on the Court’s opinion of this date, the judgment of the trial court is MODIFIED as follows:
The words “OPEN PLEA” shall be deleted from the trial court’s judgment and the words “PLEA-BARGAIN AGREEMENT” shall be substituted in their place.
Judgment entered this 29th day of January, 2024
–10–