Zamon Madden v. the State of Texas

• Court: Court of Appeals of Texas
• Decided: May 15, 2023
• Docket: 05-22-00247-CR
• Status: Published

Opinion

Affirm as Modified and Opinion Filed May 15, 2023

In The Court of Appeals Fifth District of Texas at Dallas No. 05-22-00247-CR

ZAMON MADDEN, Appellant V. THE STATE OF TEXAS, Appellee

On Appeal from the 195th Judicial District Court Dallas County, Texas Trial Court Cause No. F-2075054-N

MEMORANDUM OPINION Before Justices Partida-Kipness, Nowell, and Kennedy Opinion by Justice Partida-Kipness In his sole issue, appellant Zamon Madden seeks modification to his judgment

of conviction. The State agrees with Madden’s requested modification and seeks two

additional modifications to the judgment. We affirm as modified.

BACKGROUND

Madden was indicted for continuous sexual abuse of a young child. See TEX.

PENAL CODE § 21.02. Madden waived his right to a jury trial, pleaded not guilty, and

proceeded to trial before the court after rejecting the State’s plea-bargain offer. After

hearing the evidence, the trial court found Madden guilty of the offense as charged in the indictment. At sentencing, Madden requested to change his plea from not

guilty to guilty. The trial court denied his request and sentenced him to twenty-five

years’ imprisonment in the Texas Department of Criminal Justice–Institutional

Division. This appeal followed.

ANALYSIS

We have the power to modify a judgment to 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 (Tex.

App.—Dallas 1991, pet. ref’d) (en banc). When there is a conflict between the oral

pronouncement of a sentence and the written judgment, the oral pronouncement

controls. Shuler v. State, 650 S.W.3d 683, 686 (Tex. App.—Dallas 2022, no pet.)

(citing Taylor v. State, 131 S.W.3d 497, 500 (Tex. Crim. App. 2004)). When the oral

pronouncement and the written judgment conflict, the remedy is to reform the

judgment. See Thompson v. State, 108 S.W.3d 287, 290 (Tex. Crim. App. 2003). In

our review of the record, we sustain Madden’s issue, as well as the State’s cross-

appeal issue.

Madden asks us to correct the judgment to properly reflect that he pleaded not

guilty without a plea bargain. The State agrees and joins Madden’s request to modify

the judgment to delete the finding of “guilty” under the section titled “Plea to

Offense.” Madden also requests we delete the finding under “Terms of Plea Bargain”

which states “25 years TDC.” There was no plea bargain in this case and we agree

–2– that finding should also be deleted. We sustain Madden’s sole issue and modify the

judgment.

The State raises a cross-issue that the judgment contains two additional errors.

It believes the judgment fails to state the complainant’s age in the section addressing

sex-offender registration and fails to include the special finding that the complainant

was younger than fourteen at the time of the offense. A judgment of conviction for

an offense that requires sex-offender registration must contain the age of the victim.

TEX. CODE CRIM. PROC. art. 42.01, § 1(27). Because Madden’s continuous sexual

abuse of a young child qualifies as a registrable offense, the judgment must state the

victim’s age. See id. art. 62.001(5)(A). The judgment lists the complainant’s age as

“N/A,” instead of stating the complainant was under the age of fourteen. We sustain

the State’s cross-issue and modify the judgment to state “The age of the victim at

the time of the offense was under the age of fourteen.”

The State also requests that the judgment include a special finding stating the

complainant was “less than fourteen at the time of the offense.” For sexually violent

offenses, the judge “shall make an affirmative finding of fact and enter the

affirmative finding in the judgment if the judge determines that the victim or

intended victim was younger than 14 years of age at the time of the offense.” Id. art.

42.015(b). The affirmative finding that the complainant was younger than fourteen

triggers the prohibited-employment provisions of the sex-offender-registration

program. Id. art. 62.063(b). The State argues the trial court should have entered the

–3– following into the special findings section: “The Court affirmatively finds that the

victim or intended victim was younger than fourteen years of age at the time of the

offense.” See Vasquez v. State, No-05-20-00116-CR, 2022 WL 2951667, at *8 (Tex.

App.—Dallas July 26, 2022, no pet. h.) (mem. op., not designated for publication).

We agree and modify the judgment accordingly.

We sustain Madden’s sole issue, sustain the State’s two cross-appeal issues,

and modify the judgment accordingly.

CONCLUSION

Under this record, we find the judgment should be modified to delete the

finding of “guilty” under the section titled “Plea to Offense” and show a plea of “not

guilty,” delete the finding under “Terms of Plea Bargain” which states “25 years

TDC,” modify to state “The age of the victim at the time of the offense was under

the age of fourteen,” and add a special finding stating, “The Court affirmatively finds

that the victim was younger than fourteen years of age at the time of the offense.”

We sustain Madden’s sole issue, the State’s cross-appeal issue, and affirm the

judgment as modified.

/Robbie Partida-Kipness/ 220247f.u05 ROBBIE PARTIDA-KIPNESS Do Not Publish JUSTICE TEX. R. APP. P. 47.2(b).

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

ZAMON MADDEN, Appellant On Appeal from the 195th Judicial District Court, Dallas County, Texas No. 05-22-00247-CR V. Trial Court Cause No. F-2075054-N. Opinion delivered by Justice Partida- THE STATE OF TEXAS, Appellee Kipness. Justices Nowell and Kennedy participating.

Based on the Court’s opinion of this date, the judgment of the trial court is MODIFIED as follows: delete the finding of “guilty” and replace with “not guilty” under the section titled “Plea to Offense,” delete the finding under “Terms of Plea Bargain” which states “25 years TDC,” modify to state “The age of the victim at the time of the offense was under the age of fourteen,” and add a special finding stating, “The Court affirmatively finds that the victim or intended victim was younger than fourteen years of age at the time of the offense.” As REFORMED, the judgment is AFFIRMED.

Judgment entered this 15th day of May 2023.

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