Opinion
No. 05-16-00806-CR No. 05-16-00807-CR No. 05-16-00808-CR
07-05-2017
JALEN DEMARCUS FISHER, Appellant v. THE STATE OF TEXAS, Appellee
On Appeal from the 283rd Judicial District Court Dallas County, Texas
Trial Court Cause Nos. F12-34701-T , F12-62676-T & F15-76192-T
MEMORANDUM OPINION
Before Justices Francis, Brown, and Schenck
Opinion by Justice Francis
Jalen Demarcus Fisher appeals his convictions for possession of heroin, robbery, and aggravated robbery with a deadly weapon. In three issues, appellant contends the trial court's judgment in the aggravated robbery case should be modified to delete the deadly weapon finding and the judgments in the heroin and robbery cases modified to show the revocation of appellant's community supervision was based on one allegation. We affirm the trial court's judgments.
In February 2013, appellant waived a jury and pleaded guilty to possession of heroin in an amount less than one gram and robbery. Following the plea agreements, the trial court deferred adjudication of guilt, placed appellant on community supervision for three years, and assessed a $1,500 fee in each case. The State later moved to adjudicate guilt, alleging appellant violated numerous conditions of his community supervision, including condition (a), committing a new offense of aggravated robbery with a deadly weapon, a firearm. During a hearing, appellant waived a reading of the motions and entered open pleas of true to the allegations in the motions to adjudicate. Appellant's signed pleas of true and stipulations of evidence were admitted into evidence without objection. During the same hearing, appellant also waived a jury on the new offense and entered an open guilty plea to committing aggravated robbery with a deadly weapon, as alleged in the indictment. After hearing testimony from the detective who investigated the new offense and from appellant, the trial court found appellant guilty of aggravated robbery and sentenced him to twenty years in prison. The trial court also adjudicated appellant guilty of possession of heroin and robbery, and sentenced him to confinement in state jail for 180 days for possession of heroin and imprisonment for twenty years for robbery.
In his first issue, appellant contends the judgment in the aggravated robbery case should be modified to delete the deadly weapon finding. Appellant asserts the trial court exercised its discretion not to make a deadly weapon finding when it did not orally pronounce the finding. The State responds that the written judgment correctly reflects the trial court's finding that appellant used or exhibited a deadly weapon during commission of the aggravated robbery.
A deadly weapon finding may be made if a defendant used or exhibited a deadly weapon during the commission of the offense. TEX. CODE CRIM. PROC. art. 42.12 § 3g (a)(2) (West Supp. 2016). A defendant is entitled to notice that the State intends to seek an affirmative finding of a deadly weapon and this notice is provided if the indictment alleges the use of a deadly weapon. Ex parte Huskins, 176 S.W.3d 818, 820-21 (Tex. Crim. App. 2005). When a trial court properly admonishes a defendant prior to accepting his guilty plea to allegations in the indictment, the trial court is not required to orally announce a deadly weapon finding at sentencing if the allegation of use of a deadly weapon is clear from the face of the indictment. Id. Here, the record shows a deadly weapon was alleged in the indictment, and appellant voluntarily entered an open guilty plea to the indictment after being properly admonished by the trial court. The trial court properly included an affirmative deadly weapon finding in the written judgment. See id. We overrule appellant's first issue.
In his second and third issues, appellant contends the judgments in the heroin and robbery cases should be modified to show his community supervision was revoked solely on the allegation that he violated condition (a), committing a new aggravated robbery offense. Appellant asserts the record shows the trial court found he had violated only one of the enumerated allegations in the motions to adjudicate, but the judgment states he violated the "terms and conditions of community supervision as set out in the State's original motion to adjudicate." The State responds that the modification of the judgments to reflect a finding of true to only a single violation is not supportable in the record. We agree with the State.
The record shows the motion to adjudicate filed in the heroin case contained fourteen violations while the motion to adjudicate filed in the robbery case contained eighteen violations. Appellant pleaded true to both motions and signed pleas of true and stipulations of evidence in each case. After the trial court sentenced appellant in the new aggravated robbery case, the judge said, "In the state jail probation case, I find the allegation in the motion to be true," and "In the robbery probation I find the allegations to be true." A notation on the trial court's docket sheets state "defendant was found to have violated condition A of community supervision." Appellant points to these statements to show the trial court revoked his community supervision based solely on violation of condition (a), committing the new aggravated robbery offense.
During appellant's testimony, he admitted violating many of the conditions contained in the motions to adjudicate, such as not going to school, not paying fees and costs although he worked full-time during part of his probationary period, having a history of testing positive for drug use on urinalyses, missing treatment appointments, and failing to obtain his GED due to being kicked out of school for excess absenteeism. Although there may be some evidence that the trial court intended to find only condition (a) to have been violated, the judgments reference and incorporate the allegations in the motions to adjudicate. We have the authority to modify an incorrect judgment when we have the necessary information to do so. Estrada v. State, 334 S.W.3d 57, 64 (Tex. App.—Dallas 2009, no pet.). However, we conclude that because the record is inconclusive, modification of the judgments is not appropriate. We overrule appellant's second and third issues.
We affirm the trial court's judgments.
/Molly Francis/
MOLLY FRANCIS
JUSTICE Do Not Publish
TEX. R. APP. P. 47
160806F.U05
JUDGMENT
On Appeal from the 283rd Judicial District Court, Dallas County, Texas
Trial Court Cause No. F12-34701-T.
Opinion delivered by Justice Francis. Justices Brown and Schenck participating.
Based on the Court's opinion of this date, the judgment adjudicating guilt of the trial court is AFFIRMED. Judgment entered July 5, 2017.
JUDGMENT
On Appeal from the 283rd Judicial District Court, Dallas County, Texas
Trial Court Cause No. F12-62676-T.
Opinion delivered by Justice Francis. Justices Brown and Schenck participating.
Based on the Court's opinion of this date, the judgment adjudicating guilt of the trial court is AFFIRMED. Judgment entered July 5, 2017.
JUDGMENT
On Appeal from the 283rd Judicial District Court, Dallas County, Texas
Trial Court Cause No. F15-76192-T.
Opinion delivered by Justice Francis. Justices Brown and Schenck participating.
Based on the Court's opinion of this date, the judgment of the trial court is AFFIRMED. Judgment entered July 5, 2017.