Keilon Marcel Wright v. State

AFFIRMED as MODIFIED and Opinion Filed November 19, 2019
S In The
Court of Appeals
Fifth District of Texas at Dallas
No. 05-19-00112-CR
No. 05-19-00113-CR
No. 05-19-00114-CR
KEILON MARCEL WRIGHT, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 203rd Judicial District Court
Dallas County, Texas
Trial Court Cause Nos. F-1755630-P, F-1755631-P, F-1755632-P
MEMORANDUM OPINION
Before Justices Bridges, Whitehill, and Nowell
Opinion by Justice Bridges
The State indicted appellant Keilon Marcel Wright for aggravated robbery. The trial court
accepted his open guilty plea in each case, conducted a consolidated punishment hearing, and
sentenced appellant to thirty years’ confinement in each case, ordered to run concurrently.
Appellant raises the same issue in all three appeals. He argues the trial court lacked jurisdiction
to hear the cases and render judgments because the cases were not properly transferred to the trial
court’s docket. Because the facts are known to the parties and unnecessary for disposition of the
appeals, we issue this memorandum opinion. See TEX. R. APP. P. 47.1. As modified, we affirm
the trial court’s judgments.
In a single issue, appellant challenges the jurisdiction of the trial court. The record shows
indictments were returned to the 291st district court, then later appeared on the 195th district
court’s docket, and subsequently were transferred to the 203rd district court. Because the records
do not contain any transfer orders, appellant contends the 203rd district court never acquired
jurisdiction thereby rending the judgments void.
This Court has repeatedly addressed appellant’s argument and held a party must file a plea
to the jurisdiction to preserve this complaint for appeal. See Halton v. State, No. 05-14-00640-
CR, 2015 WL 3991827, at *12 (Tex. App.—Dallas July 1, 2015, no pet.) (mem. op., not designated
for publication) (citing Lemasurier v. State, 91 S.W.3d 897, 899–900 (Tex. App.—Fort Worth
2002, pet. ref’d) (defendant who fails to file a plea to jurisdiction waives complaint because lack
of transfer order in record is procedural, not jurisdiction)).1 No such plea was filed in these cases.
Accordingly, appellant has not preserved his issue for review. Id.; see also Chapin v. State, No.
05-15-01009-CR, 2016 WL 4421570, at *6 (Tex. App.—Dallas Aug. 19, 2016, no pet.) (mem.
op., not designated for publication) (same).
In two cross issues, the State requests modification of the judgments to reflect a deadly
weapon finding and to reflect the authority for the deadly-weapon finding pursuant to Texas Code
of Criminal Procedure article 42A.054(c) rather than article 42.12, section 3(g). An appellate court
may modify a judgment when it has the necessary information to do so. Asberry v. State, 813
S.W.2d 526, 530 (Tex. App.—Dallas 1991 pet. ref’d).
For a trial court to enter a deadly-weapon finding in the judgment, the trier of fact must
first make an affirmative finding to that effect. See Duran v. State, 492 S.W.3d 741, 746 (Tex.
1
See Ward v. State, No. 05–14–00270–CR, 2015 WL 1569823, at *6 (Tex. App.—Dallas Apr. 3, 2015, no pet.) (mem. op., not designated
for publication); Gullatt v. State, No. 05-13-01515-CR, 2014 WL 7499045, at *3 (Tex. App.—Dallas Dec. 29, 2014, no pet.) (mem. op., not
designated for publication); Brown v. State, No. 05-10-00328-CR, 2011 WL 2477649, at *5 (Tex. App.—Dallas June 23, 2011, pet. ref’d) (not
designated for publication); Chappel v. State, No. 05–10–00629–CR, 2011 WL 2438520, at *1 (Tex. App.—Dallas June 20, 2011, no pet.) (not
designated for publication).
–2–
Crim. App. 2016). There are three formal ways a factfinder makes this affirmative finding: (1) the
indictment specifically alleged a “deadly weapon” was used (using the words “deadly weapon”)
and the defendant was found guilty “as charged in the indictment”; (2) the indictment did not use
the words “deadly weapon” but alleged use of a deadly weapon per se (such as a firearm); or (3)
the jury made an express finding of fact of use of a deadly weapon in response to submission of a
special issue during the punishment stage of trial. Id.; see also Polk v. State, 693 S.W.2d 391, 396
(Tex. Crim. App. 1985) (en banc).
Here, the indictments in F-1755630-P and F-1755631-P alleged appellant “used and
exhibited a deadly weapon, to-wit: A HANDGUN.” The indictment in cause number F-1755632-
P charged appellant with using or exhibiting “a deadly weapon, to-wit, A FIREARM.” Appellant
judicially confessed to committing the offenses “exactly as alleged in the indictment.” Further,
under “special findings or orders,” the second page of the judgments indicate the “Court FINDS
Defendant used or exhibited a deadly weapon . . . ,” which indicates the omission on the first page
was a clerical error. Accordingly, we sustain the State’s first cross issue and modify the judgments
to reflect the deadly weapon finding. Duran, 492 S.W.3d at 746; see also Caballero v. State, No.
05-18-01338-CR, 2019 WL 5112270, at *1 (Tex. App.—Dallas Oct. 10, 2019, no pet.) (mem. op.,
not designated for publication).
In its second cross issue, the State asks the Court to modify the judgments to reflect the
correct statutory basis for the deadly-weapon finding. The judgments indicate the trial court
entered a deadly-weapon finding pursuant to Texas Code of Criminal Procedure article 42.12,
section 3(g). Article 42.12 of the Texas Code of Criminal Procedure was repealed and replaced
with Chapter 42A, effective January 1, 2017. See Act of June 17, 2015, 84th Leg., R.S., ch. 770,
§ 1.01, eff. Jan. 1, 2017. The statute directing the trial court to enter an affirmative finding
regarding the use or exhibition of a deadly weapon is now codified in article 42A.054(c). See TEX.
–3–
CODE CRIM. PROC. art. 42A.054(c). Because this was a clerical error and not an error of judicial
reasoning, we sustain the State’s second cross issue and modify the judgments to reflect that the
statutory basis for the court’s affirmative deadly weapon finding is “TEX. CODE CRIM. PROC. ANN.
art. 42A.054(c).” See Tarver v. State, No. 05-18-00589-CR, 2019 WL 1785342, at *2 (Tex.
App.—Dallas Apr. 24, 2019, no pet.) (mem. op., not designated for publication).
As modified, we affirm the trial court’s judgments.
/David L. Bridges/
DAVID L. BRIDGES
JUSTICE
Do Not Publish
TEX. R. APP. P. 47.2(b)
190112F.U05
–4–
S
Court of Appeals
Fifth District of Texas at Dallas
JUDGMENT
KEILON MARCEL WRIGHT, Appellant On Appeal from the 203rd Judicial District
Court, Dallas County, Texas
No. 05-19-00112-CR V. Trial Court Cause No. F-1755630-P.
Opinion delivered by Justice Bridges.
THE STATE OF TEXAS, Appellee Justices Whitehill and Nowell participating.
Based on the Court’s opinion of this date, the judgment of the trial court is MODIFIED
as follows:
Under Findings on a Deadly Weapon, we DELETE “N/A” and REPLACE with “Yes, A
FIREARM.”
The statutory basis for the special findings section on the second page of the judgment is
revised to read “TEX. CODE CRIM. PROC. ANN. art. 42A.054(c).”
As modified, the judgment of the trial court is AFFIRMED.
Judgment entered November 19, 2019
–5–
S
Court of Appeals
Fifth District of Texas at Dallas
JUDGMENT
KEILON MARCEL WRIGHT, Appellant On Appeal from the 203rd Judicial District
Court, Dallas County, Texas
No. 05-19-00113-CR V. Trial Court Cause No. F-1755631-P.
Opinion delivered by Justice Bridges.
THE STATE OF TEXAS, Appellee Justices Whitehill and Nowell participating.
Based on the Court’s opinion of this date, the judgment of the trial court is MODIFIED
as follows:
Under Findings on a Deadly Weapon, we DELETE “N/A” and REPLACE with “Yes, A
FIREARM.”
The statutory basis for the special findings section on the second page of the judgment is
revised to read “TEX. CODE CRIM. PROC. ANN. art. 42A.054(c).”
As modified, the judgment of the trial court is AFFIRMED.
Judgment entered November 19, 2019
–6–
S
Court of Appeals
Fifth District of Texas at Dallas
JUDGMENT
KEILON MARCEL WRIGHT, Appellant On Appeal from the 203rd Judicial District
Court, Dallas County, Texas
No. 05-19-00114-CR V. Trial Court Cause No. F-1755632-P.
Opinion delivered by Justice Bridges.
THE STATE OF TEXAS, Appellee Justices Whitehill and Nowell participating.
Based on the Court’s opinion of this date, the judgment of the trial court is MODIFIED
as follows:
Under Findings on a Deadly Weapon, we DELETE “N/A” and REPLACE with “Yes, A
FIREARM.”
The statutory basis for the special findings section on the second page of the judgment is
revised to read “TEX. CODE CRIM. PROC. ANN. art. 42A.054(c).”
As modified, the judgment of the trial court is AFFIRMED.
Judgment entered November 19, 2019
–7–