Christopher Dione Alexander v. State

Opinion issued July 16, 2019
In The
Court of Appeals
For The
First District of Texas
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NO. 01-18-00497-CR
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CHRISTOPHER DIONE ALEXANDER, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 338th District Court
Harris County, Texas
Trial Court Case No. 1558015
MEMORANDUM OPINION
After appellant, Christopher Dione Alexander, without an agreed
punishment recommendation from the State, pleaded guilty to the offense of
possession of a prohibited substance in a correctional facility,1 the trial court
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See TEX. PENAL CODE ANN. § 38.11(d)(1).
assessed his punishment at confinement for three years. In his sole issue, appellant
contends that the trial court’s judgment of conviction for the offense of possession
of a prohibited substance in a correctional facility should be reversed and modified.
We modify the trial court’s judgment and affirm as modified.
Background
A Harris County Grand Jury issued a true bill of indictment, alleging that
appellant, on or about July 8, 2017, “unlawfully, intentionally and knowingly
possess[ed] a controlled substance, to-wit: cocaine while in a correctional facility,
namely, Harris County Jail.” The indictment did not include any enhancement
paragraphs.
Appellant pleaded guilty to the offense of possession of a controlled
substance in a correctional facility. His plea papers do not list any enhancement
allegations, and appellant did not plead true to the allegations in any enhancement
paragraphs.
The trial court entered judgment against appellant for the offense of
possession of a prohibited substance in a correctional facility and sentenced
appellant, pursuant to the State’s recommendation, to confinement for three years
to run concurrently with a sentence in a separate cause. The judgment of
conviction states that appellant entered pleas of “[t]rue” to the allegations in two
enhancement paragraphs that he had twice been previously convicted of felony
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offenses, and the trial court also found those two enhancement paragraphs to be
“[t]rue.”
Modification of Judgment
In his sole issue, appellant argues that the trial court’s judgment of
conviction for the offense of possession of a prohibited substance in a correctional
facility should be reversed and modified because he did not enter a plea in regard
to any enhancement paragraphs. The State also requests that we modify and
affirm, rather than reverse, the trial court’s judgment.
Here, the trial court’s written judgment does not accurately comport with the
record in this case in that it states that appellant pleaded “[t]rue” to the allegations
in two enhancement paragraphs and that the trial court found the allegations in
both enhancement paragraphs to be “[t]rue.” The record, however, does not reveal
that appellant entered such pleas or that the trial court made such findings.
Further, the punishment range for the offense of possession of a controlled
substance in a correctional facility is “imprisonment in the Texas Department of
Criminal Justice for a term of not more than 10 years or less than 2 years.” TEX.
PENAL CODE ANN. § 12.34(a). A plea and subsequent finding of “[t]rue” to the
allegations in two enhancement paragraphs would have increased appellant’s
punishment range to confinement for “not more than 99 years or less than 25
years.” Id. at § 12.42(d). Because the trial court assessed appellant’s punishment
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at confinement for three years, the record demonstrates that no enhancement
paragraphs were found “true” and considered in sentencing appellant in this case.
“[A]ppellate court[s] ha[ve] the power to correct and reform a trial court
judgment ‘to make the record speak the truth when [they] ha[ve] the necessary data
and information to do so[] or make any appropriate order as the law and nature of
the case may require.’” Nolan v. State, 39 S.W.3d 697, 698 (Tex. App.—Houston
[1st Dist.] 2001, no pet.) (quoting Asberry v. State, 813 S.W.2d 526, 529 (Tex.
App.—Dallas 1991, pet ref’d)). This is true no matter who, or if anyone, has
called the matter to the attention of the appellate court. See French v. State, 830
S.W.2d 607, 609 (Tex. Crim. App. 1992); Dromgoole v. State, 470 S.W.3d 204,
226 (Tex. App.—Houston [1st Dist.] 2015, pet. ref’d); see also Asberry, 813
S.W.2d at 529–30 (“The authority of an appellate court to reform incorrect
judgments is not dependent upon the request of any party, nor does it turn on the
question of whether a party has or has not objected in the trial court.”).
Accordingly, we modify the trial court’s judgment to state “N/A” in regard
to appellant’s Plea to 1st Enhancement Paragraph and “N/A” in regard to
appellant’s Plea to 2nd Enhancement/Habitual Paragraph. We further modify the
trial court’s judgment to state “N/A” in regard to the Findings on 1st Enhancement
Paragraph and state “N/A” in regard to Findings on 2nd Enhancement/Habitual
Paragraph. See TEX. R. APP. P. 43.2(b); Bigley v. State, 865 S.W.2d 26, 27–28
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(Tex. Crim. App. 1993). Appellant has presented no basis for reversal of the trial
court’s judgment. See TEX. R. APP. P. 38.1.
We sustain, in part, appellant’s sole issue.
Conclusion
We modify the trial court’s judgment and affirm as modified.
Julie Countiss
Justice
Panel consists of Chief Justice Radack and Justices Goodman and Countiss.
Do not publish. TEX. R. APP. P. 47.2(b).
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