VICKIE LASHUN TOLBERT v. THE STATE OF TEXAS

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Court of Appeals of Texas, Dallas.

VICKIE LASHUN TOLBERT, Appellant v. THE STATE OF TEXAS, Appellee

No. 05-07-00920-CR

Decided: October 28, 2010

Before Chief Justice Wright and Justices Lang-Miers and Lagarde 1

OPINION ON REMAND

Opinion By Justice Lagarde

This case is before us on remand from the Texas Court of Criminal Appeals.   Appellant Vickie Lashun Tolbert was charged by indictment with the offense of capital murder.   She pleaded not guilty before a jury.   After hearing evidence, the jury found appellant guilty of capital murder.

On original submission on appeal, appellant raised two issues:  whether the trial court erred by not instructing the jury on the lesser-included offense of murder, and whether the trial court's judgment should be modified to correctly reflect her plea to the enhancement paragraph and to show the correct degree of felony with which she was charged.

This Court reversed the trial court's judgment on the jury charge issue and did not reach the second issue.   On petition for discretionary review, the court of criminal appeals reversed our decision on jury charge error holding the trial court was not required to sua sponte provide the jury with an instruction on the lesser-included offense of murder and remanded this case to this Court for “further proceedings not inconsistent with [their] opinion.”   The only issue before us on remand is issue two:  whether the trial court's judgment should be modified.

Because we have the necessary data and information before us to do so, we modify the trial court's judgment as requested by appellant and as agreed to by the State.   We affirm the judgment as modified.

Issue One

Issue one was decided by the court of criminal appeals's holding that “[T]he judgment of the court of appeals is reversed, and the case is remanded there for further proceedings not inconsistent with this opinion.”   A majority of the judges on the court of criminal appeals decided the trial court was not required to sua sponte provide a jury instruction on the lesser-included offense of murder.2

Issue Two

In issue two, appellant argues the trial court erred by entering a judgment that recited she was convicted of a second-degree felony offense and she pleaded true to one enhancement paragraph contained in the indictment.   Appellant asks us to modify the judgment.   The State agrees the trial court's judgment should be modified.

The indictment alleges both the offense of capital murder and an enhancement paragraph for a prior robbery conviction.   In relevant part, it alleges that the defendant Vickie Lashun Tolbert:

“[o]n or about the 15 th day of December A.D., 2005 in the County of Dallas and said State, did unlawfully then and there intentionally cause the death of THOMAS TAYLOR, an individual, hereinafter called deceased, by CUTTING AND BY STABBING DECEASED WITH A KNIFE, A DEADLY WEAPON AND A SHARP OBJECT, A DEADLY WEAPON, THE EXACT NATURE AND DESCRIPTION OF WHICH IS UNKNOWN TO THE GRAND JURORS, and the defendant was then and there in the course of committing and attempting to commit the offense of ROBBERY of said deceased․”

Thus, appellant was charged with a capital felony.   See Tex. Penal Code Ann. §§ 12.31(a), 19.03(a), (b) (West Supp.2010).   Appellant pleaded guilty to only the capital murder charge.   At sentencing, appellant's prior felony conviction for robbery in March 1987 was not mentioned.   Based on the jury's guilty verdict, the trial court assessed a life sentence, as required by statute.   See Tex. Penal Code Ann. § 12.31(a).

The trial court's judgment correctly recites the “Offense for which Defendant Convicted” as “Capital Murder DW;” however, it incorrectly states the “Degree of Offense” as “2 nd Degree Felony.”   Thus, the judgment is incorrect.

The judgment also recites the “Plea to 1 st Enhancement Paragraph” and “Findings on 1 st Enhancement Paragraph” were True. The record fails to reflect a plea of true by appellant to the enhancement paragraph and, likewise, fails to reflect a finding of true by the trial court to the allegations contained in the enhancement paragraph.   Thus, we resolve appellant's second issue in her favor.

We modify the trial court's judgment to show the degree of the offense is “capital felony,” the plea to first enhancement paragraph is “N/A,” and the findings on first enhancement paragraph is “N/A.” See 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, 529-30 (Tex.App.-Dallas 1991, pet. ref'd).

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

FOOTNOTES

FN2. Presiding Judge Keller and Judge Keasler each wrote a concurring opinion.   Judge Johnson filed a dissenting opinion in which Judge Holcomb joined, and Judge Holcomb filed a dissenting opinion in which Judge Johnson joined..  FN2. Presiding Judge Keller and Judge Keasler each wrote a concurring opinion.   Judge Johnson filed a dissenting opinion in which Judge Holcomb joined, and Judge Holcomb filed a dissenting opinion in which Judge Johnson joined.

SUE LAGARDE JUSTICE, ASSIGNED

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