ANTONIO DEMARCUS PARSON v. STATE OF TEXAS (2011)

MEMORANDUM OPINION

Opinion By Justice Lang

Antonio Demarcus Parson appeals two trial court judgments.   The first adjudicated his guilt and revoked his community supervision for aggravated robbery with a deadly weapon.   The second convicted Parson of a later offense of aggravated robbery with a deadly weapon.   The trial court sentenced him to twenty years' imprisonment in each case.   Parson raises two issues on appeal.   In both issues, Parson claims there was a single error in each of the trial court's judgments and the judgments should be modified.   Based on the record and analysis below, we decide the issues favorably to appellant.   Because all dispositive issues are clearly settled in law, we issue this memorandum opinion.   See Tex.R.App. P. 47.2(a), 47.4.   We modify the trial court's judgment and affirm as modified.

I. FACTUAL AND PROCEDURAL BACKGROUND

Parson pleaded guilty to a charge of aggravated robbery with a deadly weapon in April 2009, a violation of Tex. Penal Code Ann. § 29.03 (West 2011), and agreed to the terms of a plea bargain.   In accordance with the plea bargain, the trial court deferred adjudicating guilt, placed appellant on community supervision, and assessed a fine of $3,000.   Three months later, in December 2009, Parson was again charged with aggravated robbery with a deadly weapon, which was a violation of his probation from the April 2009 crime.

The State moved to adjudicate guilt on the prior charge of aggravated robbery with a deadly weapon, alleging eight grounds for violation of Parson's probation.   Parson pleaded true to the allegations in the amended motion without a plea agreement.   The trial court adjudicated his guilt and sentenced him to twenty years' imprisonment.   However, the judgment states Parson violated his probation as set out in the “State's ORIGINAL motion to adjudicate guilt.”   Parson entered an open plea of guilty to the December 2009 charge of aggravated robbery with a deadly weapon.   The record reflects there was no plea agreement.   However, the trial court's written judgment indicates there was a plea agreement.   Next to the space provided for “Terms of Plea Bargain,” the judgment states “20 YEARS TDC.”

II. REFORMATION OF JUDGMENT

The State agrees that the trial court's judgments should be modified in the manner requested by Parson.   We address both of Parson's issues together.

A. Standard of Review and Applicable Law

The Texas Rules of Appellate Procedure, Rule 43.2(b) states the court of appeals may “modify the trial court's judgment and affirm it as modified.”   Further, the court of appeals “has the power to correct and reform the judgment of the court below to make the record speak the truth when it has the necessary data and information to do so, or make any appropriate order as ․ the case may require.”  Asberry v. State, 813 S.W.2d 526, 529 (Tex.App.—Dallas 1991, pet. ref'd) (citing Tex.R.App. P. 80(b), (c)), modified on other grounds, Lockett v. State, 874 S.W.2d 810, 818 (Tex.App.—Dallas 1994, pet. ref'd).   In criminal cases an appellate court has the authority as well as a duty to modify the judgment of the trial court in order to make the judgment speak the truth.  Waters v. State, 127 S.W.2d 910, 910 (Tex.Crim.App.1939);  Asberry, 813 S.W.2d at 529.   If a “judgment and sentence improperly reflect the findings of the jury, the proper remedy would not be reversal of appellant's case, but reformation of the judgment and the sentence.”   Aguirre v. State, 732 S.W.2d 320, 327 (Tex.Crim.App.1982).

The power to correct the judgment does not turn on whether the party objected in the trial court.  Asberry, 813 S.W.2d at 529–30.   In criminal cases the parties do not normally have an opportunity to review the judgment before appeal, but the appellate court has the power to modify the judgment.  Id. at 531.   Thus, the appellate court has “ the power to modify incorrect judgments when the necessary data and information is available to do so. ”  Abron v. State, 997 S.W.2d 281, 282 (Tex.App.—Dallas 1998, pet. ref'd) (citing Tex.R.App. P. 43.2(b));  Bigley v. State, 865 S.W.2d 26, 27–28 (Tex.Crim.App.1993) (en banc);  Asberry, 813 S.W.2d at 529–30.

B. Application of Law to Facts

First, we address Parson's argument that the trial court's judgment in cause number F09–54325–P incorrectly states that “Defendant violated the terms and conditions of community supervision as set out in the State's ORIGINAL Motion to Adjudicate Guilt.”   The record reflects the matter was heard after the State amended its motion.   Therefore, we conclude that the judgment should be modified to state, “Defendant violated the terms and conditions of community supervision as set out in the State's AMENDED Motion to Adjudicate Guilt.”

Second, we address Parson's assertion the trial court's judgment in cause number F10–50881–P incorrectly states, “Terms of Plea Bargain:  20 YEARS TDC.” This statement in the judgment is contrary to the record, which indicates Parson entered an open plea of guilty, but did not do so as part of a plea bargain.   The judgment should be modified to state, “Terms of Plea Bargain:  NONE.” We resolve both issues favorably to Parson.

III. CONCLUSION

As modified, the trial court's judgments are affirmed.

DOUGLAS S. LANG JUSTICE