Terrence Mims v. State

AFFIRM as MODIFIED; and Opinion Filed October 4, 2018.
In The
Court of Appeals
Fifth District of Texas at Dallas
No. 05-17-01108-CR
No. 05-17-01109-CR
TERRENCE MIMS, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 283rd Judicial District Court
Dallas County, Texas
Trial Court Cause Nos. F-1558852-T & F-1660694-T
MEMORANDUM OPINION
Before Justices Myers, Evans, and Brown
Opinion by Justice Brown
In five issues, appellant Terence Mims requests modification of the trial court’s judgments
to correct clerical errors, and, in a single cross-issue, the State requests correction of an additional
clerical error. For the following reasons, we sustain each issue raised, modify the judgments to
correct the clerical errors, and affirm the judgments as modified.
BACKGROUND
Appellant was indicted for assault bodily injury/family violence with a previous conviction
in trial court cause F-1558852-T (the assault case).1 An enhancement paragraph in the indictment
alleged an additional prior conviction of assault bodily injury/family violence. Pursuant to a
1
Appellate cause number 05-17-01108-CR.
negotiated plea bargain agreement to five years’ deferred probation and a $2000 fine, appellant
entered a plea of guilty and the trial court entered an order of deferred adjudication in February
2016.
In March 2016, the State filed a motion to revoke probation or proceed with an adjudication
of guilt (motion to revoke) alleging appellant had violated fourteen conditions of his probation.
Thereafter, appellant was arrested, and the State amended the motion to revoke to allege an
aggravated robbery offense and an evading arrest offense as additional violations of appellant’s
probation conditions. And, in January 2017, the grand jury indicted appellant for the offense of
evading arrest or detention having been previously convicted for evading arrest or detention in
cause F-1660694-T (evading arrest case).2 In an enhancement paragraph, the indictment also
alleged a prior conviction of aggravated assault with a deadly weapon.
The trial court held a combined hearing on the State’s motion to revoke in the assault case
and appellant’s plea in the evading arrest case. Appellant entered an open plea of true to the
violations alleged in the State’s amended motion to revoke with the exception of the aggravated
robbery offense, which the State abandoned during the hearing. Appellant entered an open plea
of guilty to the evading arrest or detention offense and a plea of true to the enhancement paragraph.
After hearing evidence, the trial court granted the State’s motion, revoked appellant’s probation,
adjudicated appellant guilty, and assessed punishment at ten years’ confinement in the assault case.
The trial court found appellant guilty and the enhancement paragraph true in the evading arrest
case and also assessed punishment at ten years’ confinement.
MODIFICATION OF TRIAL COURT’S JUDGMENTS
In his first two issues, appellant contends the trial court’s judgments reflect the incorrect
offense statutes. The assault case judgment lists section 22.01(b)(2)(A) of the penal code as the
2
Appellate cause number 05-17-01109-CR.
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“statute for offense.” Because section 22.01(b)(2)(A) only provides for an assault offense to be
raised to a third degree felony in certain situations, appellant asserts the judgment also should list
subsection (a)(1), which sets out the actual elements of the offense. See TEX. PEN. CODE ANN. §
22.01(a)(1), (b)(2)(A) (West Supp. 2017). Similarly, the evading arrest case judgment lists the
“statute for offense” as penal code section 38.04(b)(1), which provides the offense is a state jail
felony in certain circumstances, but subsection (a) sets out the elements of the evading arrest or
detention offense. See PEN. § 38.04(a), (b)(1) (West 2016). The State agrees that the judgments
should be modified as appellant requests.
The judgment in a criminal case “shall reflect ... [t]he offense or offenses for which the
defendant was convicted.” TEX. CODE CRIM. PROC. ANN. art. 42.01 § 1(13) (West Supp. 2017).
Section 22.01(a)(1) of the penal code provides that a person commits assault if he intentionally,
knowingly, or recklessly causes bodily injury to another. See PEN. § 22.01(a)(1). Section
22.01(B)(2)(A) raises the offense from a Class A misdemeanor to a third-degree felony if (1) it
was committed against a member of the defendant’s household or family or one with whom the
defendant had a dating relationship and (2) the defendant has previously been convicted of an
offense against a member of his household or family or one with whom he had a dating
relationship. See id. § 22.01(b)(2)(A). The indictment in the assault case alleged the elements of
assault as set out in section 22.01(a)(1) and a prior family-violence conviction that raised the
offense to a third-degree felony under section 22.01(b)(2)(A). Appellant pleaded guilty to the
charge, and the trial court accepted the plea and placed appellant on five years’ deferred
adjudication probation. The trial court later adjudicated appellant’s guilt, but the judgment
adjudicating guilt includes only “22.01(b)(2)(A) Penal Code” as the “statute for offense.”
Section 38.04(a) of the penal code sets out the elements of the evading arrest or detention
offense, providing a person “commits an offense if he intentionally flees from a person he knows
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is a peace officer . . . attempting to lawfully arrest or detain him.” See PEN. § 38.04(a). Section
38.04(b)(1) raises the offense from a Class A misdemeanor to a state jail felony if the defendant,
like appellant, has a previous conviction under section 38.04(a). See id. § 38.04(b)(1). The
indictment in the evading arrest case alleged the elements of the offense as set out in section
38.04(a) and a prior evading arrest or detention offense under section 38.04(b)(1), and appellant
entered a plea of guilty to the charge as alleged in the indictment. The judgment of conviction for
evading arrest or detention, however, states that the “statute for offense” is “38.04(b)(1) Penal
Code.”
When a record contains the necessary information, we may modify an incorrect judgment
to correct clerical errors. TEX. R. APP. P. 43.2(b); Bigley v. State, 865 S.W.2d 26, 27 (Tex. Crim.
App. 1993); Asberry v. State, 813 S.W.2d 526, 529-30 (Tex. App.—Dallas 1991, pet. ref’d).
Because the judgments omit applicable subsections of the statutes describing the offenses, we
sustain appellant’s first and second issues. We modify the trial court’s judgments’ “statute of
offense” sections to include section 22.01(a)(1) in the assault case and section 38.04(a) in the
evading arrest case. See, e.g., Edwards v. State, No. 07-16-00265-CR, 2017 WL 461680, at *2
(Tex. App.—Amarillo Jan. 30, 2017, no pet.) (mem. op., not designated for publication); Abney v.
State, No. 03-15-00421-CR, 2016 WL 3361177, at *3 (Tex. App.—Austin June 10, 2016, no pet.)
(mem. op., not designated for publication).
In his third and fourth issues, appellant urges us also to reform the description of the offense
in the trial court’s judgments. Specifically, appellant requests removal of references to
enhancement in the “offense for which defendant convicted” sections of the judgments. The State
disagrees, asserting the enhancement notations do not refer to the punishment enhancement, but to
the prior convictions in each case that are elements of the respective offenses.
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The trial court's judgment should include an accurate description of the offense. See Davis
v. State, 501 S.W.2d 629, 633 (Tex. Crim. App. 1973); see also CRIM. PROC. art. 42.01 §1(13).
Here, the “offense for which defendant convicted” sections of the judgments, respectively,
describe the offenses as “assault bodily injury family violence enhanced” and “evade arrest/det
enh.” Each indictment alleged a previous conviction that raised the degree of the offense and
another previous conviction in an enhancement paragraph to enhance punishment. Under the
circumstances, we disagree with the State that “enhanced” and “enh” in the judgments’
descriptions clearly refer to the previous convictions alleged for purposes of classifying the degree
of the offenses as opposed to the previous convictions alleged to enhance punishment. Further,
the references are unnecessary. Without the references, each judgment still contains an accurate
description of the offense and recites the applicable statutory offense and degree for that offense.
Therefore, we sustain appellant’s third and fourth issues and modify the “offense for which
defendant convicted” sections of the judgments to delete the “enhanced” reference in the assault
case and the “enh” reference in the evading arrest case. Cf. Scroggins v. State, Nos. 05-14-01225-
20 & 21-CR, 2016 WL 3017577, at *3–4 (Tex. App.—Dallas May 18, 2016, no pet.) (mem. op,
not designated for publication) (reforming judgment to remove “2nd” from “Unlawful Possession
of a Controlled Substance, to-wit; Heroin 2nd Drug Free Zone”; although “2nd” may have been
intended to show conviction was enhanced with a prior felony conviction, it did not accurately do
so and was unnecessary).
In his fifth issue, appellant requests modification of the assault case judgment’s finding
that appellant “violated the terms and conditions of community supervision as set out in the State’s
Original Motion to Adjudicate Guilt . . .” when the record reflects that the State filed an amended
motion to revoke and appellant pleaded true to the violations in the amended motion with the
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exception of the aggravated robbery offense the State abandoned during the hearing on the motion.
The State does not oppose appellant’s request.
The record shows appellant pleaded true to each of the alleged violations in the State’s
amended motion to revoke with the exception of the aggravated robbery offense, which the State
abandoned. The State also subsequently abandoned its allegations that appellant violated
conditions (h), (j), (k), (m), and (n) regarding delinquent payments. The State presented no
evidence on the aggravated robbery offense or violations of conditions (h), (j), (k), (m), or (n) at
the plea hearing, and the trial court acknowledged the State’s abandonment of each of the alleged
violations. Despite the abandonment, the trial court's written judgment reflects that appellant
“violated the terms and conditions of community supervision as set out in the State’s ORIGINAL
Motion to Adjudicate Guilt as follows: See attached Motion to Adjudicate Guilt.” Attached to
the judgment was the State’s amended motion – and not the original motion. Accordingly, we
sustain appellant’s fifth issue and modify the judgment adjudicating guilt in the assault case to
correctly reflect the trial court’s finding that appellant violated only the following terms and
conditions of community supervision: (a) as it relates to the evading arrest and detention offense
alleged in cause number F1660694 only; (d); (f); (g); (l); (p); (q); (r); (t); (u); and (v) as set forth
in the State’s AMENDED Motion to Revoke Probation or Proceed with an Adjudication of Guilt.
See TEX. R. APP. P. 43.2(b); Bigley, 865 S.W.2d at 27–28; Asberry; 813 S.W.2d at 529–30.
In a cross-point, the State requests that the judgment in the assault case be modified to
reflect an affirmative family-violence finding. If the trial court determines an offense involved
family violence, it must make an affirmative finding of that fact and enter the affirmative finding
in the judgment of the case. See CRIM. PROC. art. 42.013 (West. 2018).3 Here, the indictment
3
“Family violence” is defined in relevant part as “an act by a member of a family or household against another member of the family or
household that is intended to result in physical harm, bodily injury, or sexual assault” or dating violence as that term is described in section 71.0021
of the family code. See TEX. FAM. CODE ANN. § 71.004(1), (3) (West Supp. 2017). “Family” includes individuals who are parents of the same
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alleged the complainant was a member of appellant’s “family and household and with whom
[appellant] had a dating relationship.” Appellant entered a negotiated plea of guilty and judicial
confession to the charge, agreeing to an affirmative family-violence finding, and the order of
deferred adjudication included an affirmative family-violence finding. At the subsequent hearing
on the State’s amended motion to revoke, appellant testified that he “put [his] hands on” the
complainant, the mother of his children. The trial court found the allegations in the State’s motion
to revoke to be true and found appellant guilty of the offense. The judgment adjudicating guilt
does not contain a finding of family violence as required by article 42.013. Because the record is
clear, we conclude the judgment should be modified to reflect such an affirmative finding. French
v. State, 830 S.W.2d 607, 609 (Tex. Crim. App. 1992); see, e.g., Johnson v. State, No. 05-15-
00060 & 61-CR, 2016 WL 1733610, at *7 (Tex. App.—Dallas Apr. 28, 2016, no pet.) (mem. op.,
not designated for publication). Accordingly, we sustain the State’s cross-point and modify the
trial court’s judgment in the assault case to reflect a finding of family violence.
As modified, we affirm the trial court's judgments.
/Ada Brown/
ADA BROWN
JUSTICE
Do Not Publish
TEX. R. APP. P. 47.2(b)
171108F.U05
child. See id. § 71.003 (West 2014), and “dating relationship” is defined as a relationship between individuals who have or had a continuing
relationship of a romantic or intimate nature. See id. § 71.0021(b)(West Supp. 2017).
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Court of Appeals
Fifth District of Texas at Dallas
JUDGMENT
TERRENCE MIMS, Appellant On Appeal from the 283rd Judicial District
Court, Dallas County, Texas
No. 05-17-01108-CR V. Trial Court Cause No. F-1558852-T.
Opinion delivered by Justice Brown;
THE STATE OF TEXAS, Appellee Justices Myers and Evans participating.
The Based on the Court’s opinion of this date, the judgment of the trial court is
MODIFIED as follows:
Replace “22.01(b)(2)(A) Penal Code” in the “Statute for Offense” section with
“22.01(a)(1), (b)(2)(A) Penal Code”;
Replace “ASSAULT BODILY INJURY FAMILY VIOLENCE ENHANCED” in
the “Offense for which Defendant Convicted” section with “ASSAULT BODILY
INJURY FAMILY VIOLENCE”;
Replace the following finding: “(5) While on community supervision, Defendant
violated the terms and conditions of community supervision as set out in the
State’s ORIGINAL Motion to Adjudicate Guilt as follows: See attached Motion
to Adjudicate Guilt” with “(5) While on community supervision, Defendant
violated the following terms and conditions of community supervision as set out
in the State’s AMENDED Motion to Revoke Probation or Proceed with an
Adjudication of Guilt: (a) as it relates to the evading arrest and detention offense
alleged in cause number F1660694 only; (d); (f); (g); (l); (p); (q); (r); (t); (u); and
(v); and
Under the heading “Furthermore, the following special findings or orders
apply:”, add “THE COURT FINDS THAT DEFENDANT WAS
PROSECUTED FOR AN OFFENSE UNDER TITLE 5 OF THE PENAL
CODE THAT INVOLVED FAMILY VIOLENCE. TEX. CODE CRIM.
PROC. ART. 42.013. ****NO CONTACT ORDER WITH AJANCE
LAVENDER****.”
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As MODIFIED, the judgment is AFFIRMED.
Judgment entered this 4th day of October, 2018.
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Court of Appeals
Fifth District of Texas at Dallas
JUDGMENT
TERRENCE MIMS, Appellant On Appeal from the 283rd Judicial District
Court, Dallas County, Texas
No. 05-17-01109-CR V. Trial Court Cause No. F-1660694-T.
Opinion delivered by Justice Brown;
THE STATE OF TEXAS, Appellee Justices Myers and Evans participating.
Based on the Court’s opinion of this date, the judgment of the trial court is MODIFIED
as follows:
Replace “38.04(B)(1) Penal Code” in the “Statute for Offense” section with
“38.04(a), (B)(1) Penal Code”; and
Replace “EVADE ARREST/DET ENH” in “Offense for which Defendant
Convicted” section with “EVADE ARREST/DET”.
As MODIFIED, the judgment is AFFIRMED.
Judgment entered this 4th day of October, 2018.
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