Terrence Mims v. State

Opinion

AFFIRM as MODIFIED; and Opinion Filed October 4, 2018.

In The Court of Appeals Fifth District of Texas at Dallas No. 05-17-01108-CR No. 05-17-01109-CR

TERRENCE MIMS, Appellant V. THE STATE OF TEXAS, Appellee

On Appeal from the 283rd Judicial District Court Dallas County, Texas Trial Court Cause Nos. F-1558852-T & F-1660694-T

MEMORANDUM OPINION Before Justices Myers, Evans, and Brown Opinion by Justice Brown In five issues, appellant Terence Mims requests modification of the trial court’s judgments

to correct clerical errors, and, in a single cross-issue, the State requests correction of an additional

clerical error. For the following reasons, we sustain each issue raised, modify the judgments to

correct the clerical errors, and affirm the judgments as modified.

BACKGROUND

Appellant was indicted for assault bodily injury/family violence with a previous conviction

in trial court cause F-1558852-T (the assault case).1 An enhancement paragraph in the indictment

alleged an additional prior conviction of assault bodily injury/family violence. Pursuant to a

1 Appellate cause number 05-17-01108-CR. negotiated plea bargain agreement to five years’ deferred probation and a $2000 fine, appellant

entered a plea of guilty and the trial court entered an order of deferred adjudication in February

2016.

In March 2016, the State filed a motion to revoke probation or proceed with an adjudication

of guilt (motion to revoke) alleging appellant had violated fourteen conditions of his probation.

Thereafter, appellant was arrested, and the State amended the motion to revoke to allege an

aggravated robbery offense and an evading arrest offense as additional violations of appellant’s

probation conditions. And, in January 2017, the grand jury indicted appellant for the offense of

evading arrest or detention having been previously convicted for evading arrest or detention in

cause F-1660694-T (evading arrest case).2 In an enhancement paragraph, the indictment also

alleged a prior conviction of aggravated assault with a deadly weapon.

The trial court held a combined hearing on the State’s motion to revoke in the assault case

and appellant’s plea in the evading arrest case. Appellant entered an open plea of true to the

violations alleged in the State’s amended motion to revoke with the exception of the aggravated

robbery offense, which the State abandoned during the hearing. Appellant entered an open plea

of guilty to the evading arrest or detention offense and a plea of true to the enhancement paragraph.

After hearing evidence, the trial court granted the State’s motion, revoked appellant’s probation,

adjudicated appellant guilty, and assessed punishment at ten years’ confinement in the assault case.

The trial court found appellant guilty and the enhancement paragraph true in the evading arrest

case and also assessed punishment at ten years’ confinement.

MODIFICATION OF TRIAL COURT’S JUDGMENTS

In his first two issues, appellant contends the trial court’s judgments reflect the incorrect

offense statutes. The assault case judgment lists section 22.01(b)(2)(A) of the penal code as the

2 Appellate cause number 05-17-01109-CR.

–2– “statute for offense.” Because section 22.01(b)(2)(A) only provides for an assault offense to be

raised to a third degree felony in certain situations, appellant asserts the judgment also should list

subsection (a)(1), which sets out the actual elements of the offense. See TEX. PEN. CODE ANN. §

22.01(a)(1), (b)(2)(A) (West Supp. 2017). Similarly, the evading arrest case judgment lists the

“statute for offense” as penal code section 38.04(b)(1), which provides the offense is a state jail

felony in certain circumstances, but subsection (a) sets out the elements of the evading arrest or

detention offense. See PEN. § 38.04(a), (b)(1) (West 2016). The State agrees that the judgments

should be modified as appellant requests.

The judgment in a criminal case “shall reflect ... [t]he offense or offenses for which the

defendant was convicted.” TEX. CODE CRIM. PROC. ANN. art. 42.01 § 1(13) (West Supp. 2017).

Section 22.01(a)(1) of the penal code provides that a person commits assault if he intentionally,

knowingly, or recklessly causes bodily injury to another. See PEN. § 22.01(a)(1). Section

22.01(B)(2)(A) raises the offense from a Class A misdemeanor to a third-degree felony if (1) it

was committed against a member of the defendant’s household or family or one with whom the

defendant had a dating relationship and (2) the defendant has previously been convicted of an

offense against a member of his household or family or one with whom he had a dating

relationship. See id. § 22.01(b)(2)(A). The indictment in the assault case alleged the elements of

assault as set out in section 22.01(a)(1) and a prior family-violence conviction that raised the

offense to a third-degree felony under section 22.01(b)(2)(A). Appellant pleaded guilty to the

charge, and the trial court accepted the plea and placed appellant on five years’ deferred

adjudication probation. The trial court later adjudicated appellant’s guilt, but the judgment

adjudicating guilt includes only “22.01(b)(2)(A) Penal Code” as the “statute for offense.”

Section 38.04(a) of the penal code sets out the elements of the evading arrest or detention

offense, providing a person “commits an offense if he intentionally flees from a person he knows

–3– is a peace officer . . . attempting to lawfully arrest or detain him.” See PEN. § 38.04(a). Section

38.04(b)(1) raises the offense from a Class A misdemeanor to a state jail felony if the defendant,

like appellant, has a previous conviction under section 38.04(a). See id. § 38.04(b)(1). The

indictment in the evading arrest case alleged the elements of the offense as set out in section

38.04(a) and a prior evading arrest or detention offense under section 38.04(b)(1), and appellant

entered a plea of guilty to the charge as alleged in the indictment. The judgment of conviction for

evading arrest or detention, however, states that the “statute for offense” is “38.04(b)(1) Penal

Code.”

When a record contains the necessary information, we may modify an incorrect judgment

to correct clerical errors. TEX. R. APP. P. 43.2(b); Bigley v. State, 865 S.W.2d 26, 27 (Tex. Crim.

App. 1993); Asberry v. State, 813 S.W.2d 526, 529-30 (Tex. App.—Dallas 1991, pet. ref’d).

Because the judgments omit applicable subsections of the statutes describing the offenses, we

sustain appellant’s first and second issues. We modify the trial court’s judgments’ “statute of

offense” sections to include section 22.01(a)(1) in the assault case and section 38.04(a) in the

evading arrest case. See, e.g., Edwards v. State, No. 07-16-00265-CR, 2017 WL 461680, at *2

(Tex. App.—Amarillo Jan. 30, 2017, no pet.) (mem. op., not designated for publication); Abney v.

State, No. 03-15-00421-CR, 2016 WL 3361177, at *3 (Tex. App.—Austin June 10, 2016, no pet.)

(mem. op., not designated for publication).

In his third and fourth issues, appellant urges us also to reform the description of the offense

in the trial court’s judgments. Specifically, appellant requests removal of references to

enhancement in the “offense for which defendant convicted” sections of the judgments. The State

disagrees, asserting the enhancement notations do not refer to the punishment enhancement, but to

the prior convictions in each case that are elements of the respective offenses.

–4– The trial court's judgment should include an accurate description of the offense. See Davis

v. State, 501 S.W.2d 629, 633 (Tex. Crim. App. 1973); see also CRIM. PROC. art. 42.01 §1(13).

Here, the “offense for which defendant convicted” sections of the judgments, respectively,

describe the offenses as “assault bodily injury family violence enhanced” and “evade arrest/det

enh.” Each indictment alleged a previous conviction that raised the degree of the offense and

another previous conviction in an enhancement paragraph to enhance punishment. Under the

circumstances, we disagree with the State that “enhanced” and “enh” in the judgments’

descriptions clearly refer to the previous convictions alleged for purposes of classifying the degree

of the offenses as opposed to the previous convictions alleged to enhance punishment. Further,

the references are unnecessary. Without the references, each judgment still contains an accurate

description of the offense and recites the applicable statutory offense and degree for that offense.

Therefore, we sustain appellant’s third and fourth issues and modify the “offense for which

defendant convicted” sections of the judgments to delete the “enhanced” reference in the assault

case and the “enh” reference in the evading arrest case. Cf. Scroggins v. State, Nos. 05-14-01225-

20 & 21-CR, 2016 WL 3017577, at *3–4 (Tex. App.—Dallas May 18, 2016, no pet.) (mem. op,

not designated for publication) (reforming judgment to remove “2nd” from “Unlawful Possession

of a Controlled Substance, to-wit; Heroin 2nd Drug Free Zone”; although “2nd” may have been

intended to show conviction was enhanced with a prior felony conviction, it did not accurately do

so and was unnecessary).

In his fifth issue, appellant requests modification of the assault case judgment’s finding

that appellant “violated the terms and conditions of community supervision as set out in the State’s

Original Motion to Adjudicate Guilt . . .” when the record reflects that the State filed an amended

motion to revoke and appellant pleaded true to the violations in the amended motion with the

–5– exception of the aggravated robbery offense the State abandoned during the hearing on the motion.

The State does not oppose appellant’s request.

The record shows appellant pleaded true to each of the alleged violations in the State’s

amended motion to revoke with the exception of the aggravated robbery offense, which the State

abandoned. The State also subsequently abandoned its allegations that appellant violated

conditions (h), (j), (k), (m), and (n) regarding delinquent payments. The State presented no

evidence on the aggravated robbery offense or violations of conditions (h), (j), (k), (m), or (n) at

the plea hearing, and the trial court acknowledged the State’s abandonment of each of the alleged

violations. Despite the abandonment, the trial court's written judgment reflects that appellant

“violated the terms and conditions of community supervision as set out in the State’s ORIGINAL

Motion to Adjudicate Guilt as follows: See attached Motion to Adjudicate Guilt.” Attached to

the judgment was the State’s amended motion – and not the original motion. Accordingly, we

sustain appellant’s fifth issue and modify the judgment adjudicating guilt in the assault case to

correctly reflect the trial court’s finding that appellant violated only the following terms and

conditions of community supervision: (a) as it relates to the evading arrest and detention offense

alleged in cause number F1660694 only; (d); (f); (g); (l); (p); (q); (r); (t); (u); and (v) as set forth

in the State’s AMENDED Motion to Revoke Probation or Proceed with an Adjudication of Guilt.

See TEX. R. APP. P. 43.2(b); Bigley, 865 S.W.2d at 27–28; Asberry; 813 S.W.2d at 529–30.

In a cross-point, the State requests that the judgment in the assault case be modified to

reflect an affirmative family-violence finding. If the trial court determines an offense involved

family violence, it must make an affirmative finding of that fact and enter the affirmative finding

in the judgment of the case. See CRIM. PROC. art. 42.013 (West. 2018).3 Here, the indictment

3 “Family violence” is defined in relevant part as “an act by a member of a family or household against another member of the family or household that is intended to result in physical harm, bodily injury, or sexual assault” or dating violence as that term is described in section 71.0021 of the family code. See TEX. FAM. CODE ANN. § 71.004(1), (3) (West Supp. 2017). “Family” includes individuals who are parents of the same

–6– alleged the complainant was a member of appellant’s “family and household and with whom

[appellant] had a dating relationship.” Appellant entered a negotiated plea of guilty and judicial

confession to the charge, agreeing to an affirmative family-violence finding, and the order of

deferred adjudication included an affirmative family-violence finding. At the subsequent hearing

on the State’s amended motion to revoke, appellant testified that he “put [his] hands on” the

complainant, the mother of his children. The trial court found the allegations in the State’s motion

to revoke to be true and found appellant guilty of the offense. The judgment adjudicating guilt

does not contain a finding of family violence as required by article 42.013. Because the record is

clear, we conclude the judgment should be modified to reflect such an affirmative finding. French

v. State, 830 S.W.2d 607, 609 (Tex. Crim. App. 1992); see, e.g., Johnson v. State, No. 05-15-

00060 & 61-CR, 2016 WL 1733610, at *7 (Tex. App.—Dallas Apr. 28, 2016, no pet.) (mem. op.,

not designated for publication). Accordingly, we sustain the State’s cross-point and modify the

trial court’s judgment in the assault case to reflect a finding of family violence.

As modified, we affirm the trial court's judgments.

/Ada Brown/ ADA BROWN JUSTICE

Do Not Publish TEX. R. APP. P. 47.2(b)

171108F.U05

child. See id. § 71.003 (West 2014), and “dating relationship” is defined as a relationship between individuals who have or had a continuing relationship of a romantic or intimate nature. See id. § 71.0021(b)(West Supp. 2017).

–7– Court of Appeals Fifth District of Texas at Dallas JUDGMENT

TERRENCE MIMS, Appellant On Appeal from the 283rd Judicial District Court, Dallas County, Texas No. 05-17-01108-CR V. Trial Court Cause No. F-1558852-T. Opinion delivered by Justice Brown; THE STATE OF TEXAS, Appellee Justices Myers and Evans participating.

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

Replace “22.01(b)(2)(A) Penal Code” in the “Statute for Offense” section with “22.01(a)(1), (b)(2)(A) Penal Code”;

Replace “ASSAULT BODILY INJURY FAMILY VIOLENCE ENHANCED” in the “Offense for which Defendant Convicted” section with “ASSAULT BODILY INJURY FAMILY VIOLENCE”;

Replace the following finding: “(5) While on community supervision, Defendant violated the terms and conditions of community supervision as set out in the State’s ORIGINAL Motion to Adjudicate Guilt as follows: See attached Motion to Adjudicate Guilt” with “(5) While on community supervision, Defendant violated the following terms and conditions of community supervision as set out in the State’s AMENDED Motion to Revoke Probation or Proceed with an Adjudication of Guilt: (a) as it relates to the evading arrest and detention offense alleged in cause number F1660694 only; (d); (f); (g); (l); (p); (q); (r); (t); (u); and (v); and

Under the heading “Furthermore, the following special findings or orders apply:”, add “THE COURT FINDS THAT DEFENDANT WAS PROSECUTED FOR AN OFFENSE UNDER TITLE 5 OF THE PENAL CODE THAT INVOLVED FAMILY VIOLENCE. TEX. CODE CRIM. PROC. ART. 42.013. ****NO CONTACT ORDER WITH AJANCE LAVENDER****.”

–8– As MODIFIED, the judgment is AFFIRMED.

Judgment entered this 4th day of October, 2018.

–9– Court of Appeals Fifth District of Texas at Dallas JUDGMENT

TERRENCE MIMS, Appellant On Appeal from the 283rd Judicial District Court, Dallas County, Texas No. 05-17-01109-CR V. Trial Court Cause No. F-1660694-T. Opinion delivered by Justice Brown; THE STATE OF TEXAS, Appellee Justices Myers and Evans participating.

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

Replace “38.04(B)(1) Penal Code” in the “Statute for Offense” section with “38.04(a), (B)(1) Penal Code”; and

Replace “EVADE ARREST/DET ENH” in “Offense for which Defendant Convicted” section with “EVADE ARREST/DET”.

As MODIFIED, the judgment is AFFIRMED.

–10–