Joseph Lee Escobar v. the State of Texas

NO. 12-20-00213-CR
IN THE COURT OF APPEALS
TWELFTH COURT OF APPEALS DISTRICT
TYLER, TEXAS
JOSEPH LEE ESCOBAR, § APPEAL FROM THE 349TH
APPELLANT
V. § JUDICIAL DISTRICT COURT
THE STATE OF TEXAS,
APPELLEE § HOUSTON COUNTY, TEXAS
MEMORANDUM OPINION
Joseph Lee Escobar appeals the revocation of his community supervision. In a single
issue, he contends the judgment should be modified to correct an error. We modify the trial
court’s judgment and affirm as modified.
BACKGROUND
In November 2016, Appellant was charged by indictment with possession of a controlled
substance, methamphetamine, in an amount less than one gram. In February 2018, a jury found
Appellant guilty as charged in the indictment. The trial court assessed punishment at two years
confinement. However, the trial court suspended the sentence and placed Appellant on
community supervision for four years.
In February 2020, the State filed a motion to revoke Appellant’s community supervision
alleging that he violated certain terms and conditions thereof. At the hearing on the motion to
revoke, Appellant pleaded “not true” to the allegations in the State’s motion. At the conclusion
of the hearing, the trial court found five of the allegations to be “true” and five allegations “not
true.” The trial court revoked Appellant’s community supervision and sentenced him to two
years confinement. This appeal followed.
ERROR IN JUDGMENT
In his sole issue, Appellant contends the judgment incorrectly reflects that his sentence is
to run “concurrently with 19CR-063.” The record includes no information about cause number
19CR-063, including whether Appellant is a named defendant. Therefore, this statement in the
judgment is incorrect.
We have the authority to modify the judgment to make the record speak the truth when
we have the necessary data and information to do so. Ingram v. State, 261 S.W.3d 749, 754
(Tex. App.–Tyler 2008, no pet.); Davis v. State, 323 S.W.3d 190, 198 (Tex. App.–Dallas 2008,
pet. ref'd). Texas Rule of Appellate Procedure 43.2 expressly authorizes an appellate court to
modify the trial court’s judgment. TEX. R. APP. P. 43.2(b). In this case, we have the necessary
data and information to modify the judgment to reflect that Appellant’s sentence should not run
concurrently with another cause. See id.; see also 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). We sustain Appellant’s sole issue.
DISPOSITION
Having sustained Appellant’s sole issue, we modify the judgment to delete “shall run
concurrently with CR19-063,” and affirm the judgment as modified.
GREG NEELEY
Justice
Opinion delivered August 18, 2021.
Panel consisted of Worthen, C.J., Hoyle, J., and Neeley, J.
(DO NOT PUBLISH)
2
COURT OF APPEALS
TWELFTH COURT OF APPEALS DISTRICT OF TEXAS
JUDGMENT
AUGUST 18, 2021
NO. 12-20-00213-CR
JOSEPH LEE ESCOBAR,
Appellant
V.
THE STATE OF TEXAS,
Appellee
Appeal from the 349th District Court
of Houston County, Texas (Tr.Ct.No. 16CR-192)
THIS CAUSE came to be heard on the appellate record and the briefs filed
herein, and the same being considered, because it is the opinion of this court that the judgment of
the court below should be modified and as modified, affirmed.
It is therefore ORDERED, ADJUDGED and DECREED that the judgment
of the court below be modified to delete “shall run concurrently with CR19-063;” in all other
respects the judgment of the trial court is affirmed; and that this decision be certified to the court
below for observance.
Greg Neeley, Justice.
Panel consisted of Worthen, C.J., Hoyle, J., and Neeley, J.