Darreian Owens v. State ( 2019 )

MODIFY and AFFIRM; and Opinion Filed August 8, 2019.
In The
Court of Appeals
Fifth District of Texas at Dallas
No. 05-18-00759-CR
DARREIAN OWENS, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the Criminal District Court No. 1
Dallas County, Texas
Trial Court Cause No. F-1800300-H
MEMORANDUM OPINION
Before Justices Whitehill, Partida-Kipness, and Pedersen, III
Opinion by Justice Pedersen, III
A jury convicted appellant Darreian Owens of aggravated assault causing serious bodily
injury. See TEX. PENAL CODE ANN. § 22.02(a)(1). In a single issue, appellant asks this Court to
modify the district court’s judgment to correct two errors contained therein. The State agrees with
appellant and also raises a cross-point in which it asserts that we should delete a misleading entry
in the judgment. We agree with both appellant and the State. Accordingly, we modify the judgment
and affirm it as modified.
Background
Appellant’s indictment contained two enhancement paragraphs, one for a prior felony
conviction of harassment by person in a correctional facility1 and the other for a prior felony
conviction of attempted arson.2 However, the State filed (i) a motion to strike these paragraphs and
(ii) a notice of intent to enhance appellant’s punishment range based on two different prior
convictions, one for a prior conviction of robbery3 and the other for a prior conviction of
aggravated robbery.4 See id. § 12.42 (statute pertaining to penalties for repeat and habitual felony
offenders on trial for first, second, or third degree felony). The district court granted the State’s
motion to strike, and appellant pled “true” to the enhancements set forth in the State’s notice of
intent. The court accepted appellant’s plea and found the enhancement paragraphs to be “true.”
The court then assessed appellant’s punishment at twenty-five years’ confinement in the
Institutional Division of the Texas Department of Criminal Justice. This appeal followed.
Errors in Judgment
The court’s judgment was based on a standard felony judgment form promulgated by the
Office of Court Administration. See TEX. CODE CRIM. PRO. ANN. art. 42.01, § 4 (“A court entering
a felony [judgment] shall use the form promulgated under this section.”).5 Appellant notes that the
court made two errors in filling in the blanks in the form judgment in this case. First, the judgment
erroneously lists the “Statute of Offense” as section 22.01 of the Penal Code, see PENAL CODE
ANN. § 22.01 (assault), rather than section 22.02, the correct listing, see id. § 22.02 (aggravated
assault). Second, the judgment erroneously describes appellant’s plea to the first and second
1
See PENAL CODE § 22.11(a)(1), (d).
2
See id. § 15.01 (criminal attempt), § 28.02 (arson).
3
See id. § 29.02.
4
See id. § 29.03.
5
See also “Judgment of Conviction by Jury,” Office of Court Administration, accessed August 5, 2019,
http://www.txcourts.gov/media/1443173/judgment-of-conviction-by-jury.doc (copy of such form).
–2–
enhancement paragraphs, and to the court’s findings on such paragraphs, as “N/A,” rather than
“True,” the correct description.
We have the power to modify an incorrect judgment when we have the necessary data and
information 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); Abron v. State, 997 S.W.2d 281, 282 (Tex. App.—Dallas 1998, pet. ref’d), or
to make any appropriate order as the law and the nature of the case may require, Asberry v. State,
813 S.W.2d 526, 529 (Tex. App.—Dallas 1991, pet. ref’d). Based on the record before us, we
sustain appellant’s sole issue. We modify the judgment to describe the “Statute of Offense” as
“22.02(a)(1) Penal Code.” We also modify the judgment to describe appellant’s plea to the first
and second enhancement paragraphs, and to the district court’s findings on such paragraphs, as
“True.”
Misleading Entry
The judgment also recites: “STATE’S MOTION TO STRIKE ENHANCED
PARAGRAPHS GRANTED.” The State’s cross-point contends that this entry is not an affirmative
finding authorized by statute to be included in the judgment, see CODE CRIM. PRO. art. 42.01,
§ 1(1)–(29) (listing items that a judgment must contain), nor is this entry included on the list,
promulgated by the Office of Court Administration, of “Affirmative Findings and Special Orders
for Felony Judgment Forms.”6 In addition, the State asserts that the foregoing entry, while accurate,
is “factually incomplete” and that it “gives the appearance of an inconsistency on the face of the
judgment.” In the context of this record, we agree that the entry is misleading. Specifically, the
statement in the judgment that the court “GRANTED” the “STATE’S MOTION TO STRIKE
ENHANCED PARAGRAPHS” suggests that no enhancements remained, thereby calling into
6
Office of Court Administration, accessed August 5, 2019, http://www.txcourts.gov/media/1443209/affirmative-findings-and-special-orders-
for-felony-judgment-form.docx.
–3–
question the legality of appellant’s sentence.7 In reality, the stricken enhancements were replaced
by those contained in the State’s notice of intent to enhance appellant’s punishment range, and the
enhancements in the notice of intent are the ones to which appellant pled “true.” Accordingly, we
conclude that the entry should be stricken from the judgment to render it not misleading. See TEX.
R. APP. P. 43.2(b); Bigley, 865 S.W.2d at 27–28; Abron, 997 S.W.2d at 282; Asberry, 813 S.W.2d
at 529. We sustain the State’s cross-point.
Conclusion
We modify the judgment of the district court as set forth above and affirm the judgment as
modified.
/Bill Pedersen, III/
BILL PEDERSEN, III
JUSTICE
Do Not Publish
TEX. R. APP. P. 47
180759F.U05
7
Specifically, appellant was charged with a second-degree felony, see PENAL CODE § 22.02(a)(1), (b), which, absent an enhancement, is
subject to a range of two to twenty years’ imprisonment, see id. at § 12.33(a). However, upon appellant’s plea of “true” to the two enhancement
paragraphs set forth in the State’s notice of intent to enhance appellant’s punishment range, he was subject to a range of twenty-five to ninety-nine
years’ imprisonment, see id. § 12.42(d).
–4–
Court of Appeals
Fifth District of Texas at Dallas
JUDGMENT
DARREIAN OWENS, Appellant On Appeal from the Criminal District Court
No. 1, Dallas County, Texas
No. 05-18-00759-CR V. Trial Court Cause No. F-1800300-H.
Opinion delivered by Justice Pedersen, III.
THE STATE OF TEXAS, Appellee Justices Whitehill and Partida-Kipness
participating.
Based on the Court’s opinion of this date, the judgment of the trial court is MODIFIED
as follows:
We modify the judgment to (i) describe the “Statute of Offense” as “22.02(a)(1) Penal
Code,” and (ii) describe appellant’s plea to the first and second enhancement paragraphs, and to
the district court’s findings on such paragraphs, as “True.” We also strike the phrase “STATE’S
MOTION TO STRIKE ENHANCED PARAGRAPHS GRANTED” from the second page of the
judgment.
As MODIFIED, the judgment is AFFIRMED.
Judgment entered this 8th day of August, 2019.
–5–