Opinion
NO. 03-14-00328-CR
05-11-2016
Isreal Reyes, Sr., Appellant v. The State of Texas, Appellee
FROM THE DISTRICT COURT OF COMAL COUNTY, 207TH JUDICIAL DISTRICT
NO. CR2012-427, HONORABLE JACK H. ROBISON, JUDGE PRESIDINGMEMORANDUM OPINION
A jury convicted appellant Isreal Reyes, Sr., of aggravated assault with a deadly weapon and unlawful possession of a firearm. See Tex. Penal Code §§ 22.02, 46.04. The trial court assessed punishment at ten years' and five years' imprisonment, respectively. See id. §§ 12.33, 12.34. The trial court ordered that the sentence for aggravated assault with a deadly weapon run consecutive to a previous sentence appellant received for aggravated assault with a deadly weapon against a family member. Regarding the conviction for unlawful possession of a firearm, the trial court ordered that the sentence run concurrently with the conviction for aggravated assault with a deadly weapon in this case.
In four issues, appellant challenges the sufficiency of the evidence to support his conviction for aggravated assault with a deadly weapon, contends that the cumulation order contained in the trial court's judgment of conviction for aggravated assault is deficient, and contends that there are clerical errors in both judgments of conviction that are in need of correction. We will modify the trial court's judgments of conviction and affirm the judgments as modified.
BACKGROUND
The jury heard evidence that appellant and Billie Jean McCann were in a dating relationship and living together in 2012. At the time, McCann was pregnant with their child. The State presented evidence showing that, on January 15, 2012, while appellant and McCann were in their home, appellant became angry with McCann and shot a gun inside the home, causing the bullet to hit a bedpost on a bed in which she was lying. The State also presented evidence to show that appellant unlawfully possessed the gun that he shot in the home because he was a convicted felon and was not allowed to possess a firearm at that time.
At the time of trial, appellant had already been convicted in a separate trial of another offense against McCann, also an aggravated assault with a deadly weapon. The previous offense occurred approximately five months after the alleged offense in this case but went to trial before this case for reasons that are unclear from the record. During the punishment phase of the trial in this case, the State asked the trial court to make the sentence for the aggravated assault in this case run consecutive to the sentence appellant was currently serving for the prior aggravated-assault conviction. The trial court granted the State's request and cumulated the sentences, sentencing appellant to ten years' imprisonment for aggravated assault with a deadly weapon to run consecutive to the twenty years' imprisonment he was currently serving for the prior conviction. Regarding the offense of unlawful possession of a firearm, the trial court assessed punishment at ten years' imprisonment to run concurrent with the aggravated assault in this case. This appeal followed.
DISCUSSION
In four issues, appellant argues that (1) the evidence is insufficient to prove that he threatened McCann with imminent bodily injury when he shot a gun in the home in which they were living; (2) the cumulation order contained in the trial court's judgment of conviction for the aggravated-assault offense is deficient because there is insufficient evidence to prove the prior conviction or appellant's connection to it; (3) the cumulation order is deficient because it lacks the required level of specificity; and (4) the judgments in both convictions in this case erroneously state that appellant entered pleas of "guilty" to the alleged offenses. We will address each issue below.
Sufficiency of the Evidence
When reviewing the sufficiency of the evidence to support a conviction, we consider all the evidence in the light most favorable to the verdict to determine whether, based on that evidence and the reasonable inferences that can be drawn from it, any rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319 (1979); Temple v. State, 390 S.W.3d 341, 360 (Tex. Crim. App. 2013). In our analysis, we assume that the trier of fact resolved conflicts in the testimony, weighed the evidence, and drew reasonable inferences in a manner that supports the verdict. Jackson, 443 U.S. at 319; Isassi v. State, 330 S.W.3d 633, 638 (Tex. Crim. App. 2010). We consider only whether the jury reached a rational decision. See Isassi, 330 S.W.3d at 638 ("Our role on appeal is restricted to guarding against the rare occurrence when a factfinder does not act rationally." (quoting Laster v. State, 275 S.W.3d 512, 517 (Tex. Crim. App. 2009))).
Legal sufficiency of the evidence is measured by the elements of the offense as defined by a hypothetically correct jury charge. See Thomas v. State, 444 S.W.3d 4, 8 (Tex. Crim. App. 2014) (citing Malik v. State, 953 S.W.2d 234, 240 (Tex. Crim. App. 1997)). "A hypothetically correct jury charge is one that 'accurately sets out the law, is authorized by the indictment, does not unnecessarily increase the State's burden of proof or unnecessarily restrict the State's theories of liability, and adequately describes the particular offense for which the defendant was tried.'" Id. (quoting Malik, 953 S.W.2d at 240). The law as authorized by the indictment means the statutory elements of the charged offense as modified by the factual details and legal theories contained in the indictment. See Daugherty v. State, 387 S.W.3d 654, 665 (Tex. Crim. App. 2013).
The statute under which appellant was convicted states the following, in relevant part:
(a) A person commits an offense if the person commits assault as defined in § 22.01 and the person:
Tex. Penal Code § 22.02(a). Section 22.01 of the Texas Penal Code defines "assault" as follows:(1) causes serious bodily injury to another, including the person's spouse; or
(2) uses or exhibits a deadly weapon during the commission of the assault.
(a) A person commits an offense if the person:
(1) intentionally, knowingly, or recklessly causes bodily injury to another, including the person's spouse;
(2) intentionally or knowingly threatens another with imminent bodily injury, including the person's spouse; or
Tex. Penal Code § 22.01(a).(3) intentionally or knowingly causes physical contact with another when the person knows or should reasonably believe that the other will regard the contact as offensive or provocative.
The indictment in this case charged appellant with aggravated assault by threat. Specifically, the indictment alleged that appellant "intentionally or knowingly threaten[ed] [McCann] with imminent bodily injury by shooting a firearm at or in the direction of the said [McCann], and the said [appellant] did use or exhibit a deadly weapon, to-wit: a firearm, during the commission of said assault."
Appellant contends on appeal that the evidence presented at trial is insufficient to prove that he threatened McCann with imminent bodily injury when he shot the gun in the home on January 15, 2012. Appellant asserts that the evidence shows that McCann did not actually perceive a threat because, although she heard the gun shot, she did not see the gun in appellant's hand or see him point the gun in her direction. Appellant cites to Olivas v. State, 203 S.W.3d 341, 349 (Tex. Crim. App. 2006) in support of his argument but also correctly characterizes the Olivas decision as leaving open the issue of whether a victim must perceive a threat in order for the evidence of assault by threat to be sufficient. Like the Olivas court, we need not determine whether an alleged victim must perceive a defendant's threat to establish the crime of assault by threat because we conclude that the evidence in this case is sufficient to prove that McCann perceived a threat when appellant shot the gun in their home.
Excerpts from a detective's videotaped interview of appellant were admitted at trial. In the excerpts, appellant admitted that he shot a gun toward the floor and hit the bedpost while McCann was lying in the bed in their home. In a videotaped interview of appellant conducted by an investigator with Child Protective Services ("CPS") and admitted into evidence at trial, appellant stated that he was very frustrated on the day of the shooting, and he admitted that he shot toward the floor and hit the bedpost. He said he then "let everything out" and told McCann that he had it with her, that he was "tired of this shit," that she made him do things he did not want to do, and that he did not see any appreciation for all the things he did for her. He said that McCann left the home afterward and made a "big old issue about it." He stated that she came back a few days later and that she would not have come back if she had been as scared as she claimed she was.
At trial, McCann recanted or downplayed most of an earlier account of what happened on the day of the shooting, but her earlier account was audiotaped by a detective and admitted into evidence at trial. In the interview, McCann told the detective that she was sleeping in the bed when appellant shot a gun and hit the bedpost. She told the detective that she believed that his intention when he shot the bedpost was to scare her. The record shows that the home in which appellant and McCann lived was a trailer home, and McCann testified at trial that the home was the size of "half of an RV."
The audiotaped interview of McCann also contained her statements about the other aggravated assault committed by appellant against McCann, the one that occurred after the shooting in this case but that went to trial first. In the interview, McCann described the circumstances surrounding the second shooting to the detective. She stated that she was at her sister's house on June 6, 2012, when appellant accidentally called her with his phone, and she heard him with another woman. Appellant realized what happened, and he and McCann began fighting on the phone. She said that he told her he wanted her cell phone back since he had paid for it and that he was coming to her sister's house to get it. She told the detective that he threatened to burn her sister's house down and kill her if she did not put the cell phone in her sister's mailbox. She said that she and appellant had been dating for approximately a year and that appellant made these types of threats when the two of them argued. She said, "to kill me mainly is what he always threatens." When asked by the detective the specific words appellant would use, she said that he would say, "Bitch, I'll kill you." She said that when appellant demanded the return of her phone, she told him she would not give it to him. She told the detective that appellant then arrived at her sister's house and called her and told her that he would shoot her sister's dog if she did not come outside. When she went outside, he was pointing a gun at the dog. She and appellant argued, and when she turned to go back inside, she heard the gun go off, and she "felt [the bullet] go in [her] face." At trial, McCann testified that she was pregnant at the time of the shooting and that she delivered the baby about a week later. At the time of the interview, which was one day after the baby was born, McCann told the detective that she did not want anything to do with appellant anymore.
However, by the time of trial, McCann testified that she loved appellant "a whole bunch" and that she had been communicating with him by phone and was planning to visit him later that day. When the State asked her questions about the shooting, she testified that she did not remember very much about it. She testified that she did not even remember where she was living on the date of the alleged shooting. After her earlier audiotaped interview was played in court, and after the State asked her whether she remembered telling the detective she was scared when appellant shot at her, McCann stated, "I told [the detective] a lot of things that day because there was a CPS lady there in order to keep my daughter." After the State pressed her further, McCann agreed that she said she was scared, and said, "I was scared, yeah, then. I was scared of a lot of things then." She also agreed with the State that the audiotape depicted her telling the detective that appellant would shoot at her to scare her and to get her to do what he wanted her to do. On cross-examination, McCann testified that she was falling asleep in the bed and was angry at appellant and arguing with him when she heard a gun shot. She testified that she did not see a gun in appellant's hand. She testified that she did not feel threatened by the gun shot and that she immediately went back to sleep after the shooting. She also testified that there was no damage to the bedpost after the shooting.
A detective's videotaped interview of McCann's mother was also admitted at trial. In the videotape, McCann's mother said that McCann was pregnant at the time of the shooting in the home and that McCann told her that appellant shot at her when she was asleep on the bed. She told the detective that McCann told her that the bullet hit the bedpost and shattered it. She said that McCann "got up and left" after the shooting. At trial, McCann's mother testified that she helped McCann move out of the home after the shooting. McCann's mother further testified that she was very angry about the shooting and confronted appellant, who told her it was an accident.
Considering all of the evidence admitted at trial in the light most favorable to the verdict, we conclude that the evidence is sufficient to prove that appellant threatened McCann with imminent bodily injury when he shot a gun in their home. Although the evidence shows that McCann did not see the gun in appellant's hand, both she and appellant gave accounts of the shooting in which they stated that the bullet hit the bedpost on the bed in which McCann was lying. The evidence also shows that the trailer home in which appellant shot the gun was the size of about "half of an RV," and the jury could have inferred that the size of the home meant that appellant could not have been very far from McCann at the time he fired the shot. See Hooper v. State, 214 S.W.3d 9, 13 (Tex. Crim. App. 2007) (jurors may draw reasonable inferences from basic facts to ultimate facts). Further, although McCann denied at trial that she left the home after appellant shot the gun, both appellant and McCann's mother either said in videotaped statements or testified at trial that McCann was upset after the shooting and left the home. See Lancon v. State, 253 S.W.3d 699, 707 (Tex. Crim. App. 2008) (jury is sole judge of witness's credibility and weight to be given witness's testimony). McCann also acknowledged at trial that she was scared at the time of the shooting.
Moreover, McCann's account of her relationship with appellant in her interview with the detective showed a pattern of threats and violent behavior directed toward her by appellant that caused her fear, including his threats to kill her, burn her sister's house down, and kill her sister's dog; his action in shooting her in the face; and her belief that he shot at her as a way to scare her and get her to do what he wanted. All of this evidence taken together is sufficient to show that McCann perceived a threat of imminent bodily injury and that appellant intended to threaten McCann with imminent bodily injury when he shot a gun that hit the bedpost on the bed in which she was lying. See Landrian v. State, 268 S.W.3d 532, 536 (Tex. Crim. App. 2008) (assault by threat is conduct-oriented offense that focuses on act of making threat, regardless of result threat may cause); Olivas, 203 S.W.3d at 347 (evidence sufficient to prove that victim perceived threat when appellant shot at her truck because she already felt threatened by appellant in weeks leading up to shooting, she suspected that appellant was driving in car near her truck while she was driving, she knew he did something to her truck, and she felt scared by his actions); Montejano v. State, No. 08-12-00235-CR, 2014 WL 4638911, at *6 (Tex. App.—El Paso Sept. 17, 2014, no pet.) (not designated for publication) (operative question in assault-by-threat case is whether defendant's conduct would be perceived as objectively threatening under circumstances).
Because we conclude that the evidence presented at trial is sufficient to prove that appellant intended to threaten McCann with imminent bodily injury when he shot a gun toward the bed in which she was lying and hit one of the bedposts, we overrule appellant's first issue.
Cumulation Order
Appellant's second and third issues both challenge the cumulation order contained in the trial court's judgment of conviction for the aggravated-assault offense. Specifically, in his second issue, appellant contends that the cumulation order is deficient because the record does not include sufficient evidence of the previous conviction or appellant's connection to it. In his third issue, appellant asserts that the cumulation order is deficient because it does not contain the required level of specificity.
Under article 42.08 of the Texas Code of Criminal Procedure, a trial court has discretion to cumulate a defendant's sentence for two or more convictions. See Tex. Code Crim. Proc. art. 42.08(a). Specifically, article 42.08(a) states that:
the judgment in the second and subsequent convictions may either be that the sentence imposed or suspended shall begin when the judgment and the sentence imposed or suspended in the preceding conviction has ceased to operate, or that the sentence imposed or suspended shall run concurrently with the other case or cases[.]Id. Here, the trial court ordered that appellant's sentence for aggravated assault with a deadly weapon run consecutive to the sentence he was currently serving for a previous conviction for aggravated assault with a deadly weapon against McCann.
We will address each of appellant's challenges to the cumulation order separately below.
A. Evidence Supporting Cumulation Order
In order for a trial court to cumulate sentences, the record must contain some evidence connecting the defendant with the prior conviction. See Moore v. State, 371 S.W.3d 221, 226 (Tex. Crim. App. 2012); Miller v. State, 33 S.W.3d 257, 261 (Tex. Crim. App. 2000). In this case, the cumulation order contained in the judgment states: "CR2012-427 COUNT 1 TO RUN CONSECUTIVELY WITH CR2013-428." As we will address below, the record in this case shows that the reference to "CR2013-428" is a clerical error and should be "CR2012-428." In CR2012-428, appellant was charged with one count of aggravated assault with a deadly weapon against a family member (McCann), one count of endangering a child (McCann's unborn baby), and one count of unlawful possession of a firearm. The record shows that appellant pleaded "not guilty" to the first two counts and "guilty" to the third count. A jury then heard evidence on the first two counts and convicted appellant of both. In that case, appellant was tried in the same trial court with the same trial judge and trial counsel as this case, and the trial in that case took place only about five months before the trial in this case.
The trial judge and counsel for both parties made mention of the first trial throughout the guilt/innocence and punishment phases of the trial in this case, and evidence regarding the first aggravated assault was admitted at trial. Specifically, the detective who interviewed McCann after both shootings testified that he interviewed her because "[i]t was reported that there was a disturbance between [appellant] and [McCann], and that a shot was fired, and that [McCann] was struck in the face, in the chin area." The State then directed the detective to speak only about the alleged assault in this case, but the trial court later ruled that the detective's full interview with McCann could be admitted into evidence. As discussed above, McCann described in detail the incident when appellant shot at her and struck her in the face.
The previous aggravated assault was also mentioned during the trial when the State moved to admit a transcript from the first trial showing appellant's pleas to each of the three charges in that case. The following exchange then occurred between defense counsel and the trial court:
Defense: So basically, I'm just objecting to the use of the plea from the prior case involving different dates.At the same time, the judgment of conviction from the previous case was admitted into evidence. When the judgment was offered, defense counsel objected only on the basis that the judgment would mislead the jury, was more prejudicial than probative, and might be pending on appeal. Defense counsel did not object on the basis that appellant was not the defendant in that case. The trial court admitted the judgment over defense counsel's objections. The judgment shows that Isreal Reyes, Sr., under cause number CR2012-428, was convicted of aggravated assault with a deadly weapon against a family member. The judgment further indicates that the offense occurred on June 6, 2012, and that appellant was convicted of the offense in the same court and with the same trial judge and counsel for both parties as in this case. The judgment shows that appellant was sentenced to twenty years' imprisonment, to run concurrently with his sentences of the same date for endangering a child and unlawful possession of a firearm.
Court: What prior case?
Defense: CR-2012-428, State of Texas versus Isreal Reyes. We have—
Court: That's not alleged, so how is that even relevant?
Defense: She wants to use the plea from the prior case, from 428.
Court: What prior case? You keep saying "prior case." That doesn't make any sense.
Defense: The one we've already tried.
Court: Oh, the one we've already tried. Oh, well, you anticipated that on the issue of what came in on the — yeah, that will be overruled.
At the beginning of the punishment phase in this trial, the previous conviction was mentioned again in the following exchange between the trial court and defense counsel:
Court: Now, [defense counsel], remind me, didn't he set—wasn't he sentenced by a jury to 20 years?In addition, during the State's cross-examination of appellant in the punishment phase, the following exchange occurred:
Defense: On the previous case, Your Honor.
Court: Yes, that's right.
Defense: 20 on the—
Court: And then we tried again for the shooting the bedpost. Right?
Defense: Correct.
Court: I remember.
State: You are a convicted felon how many times?In a later portion of the cross-examination, the following exchange occurred:
Appellant: One time.
State: What about—
Appellant: Besides this prior conviction that I got for the incident where she got struck in the face.
State: When [McCann] was shot in the face, what gun did you have in your hand at that time?
. . . .
Appellant: I don't remember, ma'am.
State: Was it the .38 that has the same nickel plate with the yarn wrapped around the handle that was admitted into that trial and also into this trial?
Appellant: No, ma'am.
State: Do you know what caliber of firearm it was?
Appellant: It was—it was a .38, but it wasn't that .38.
The State also asked appellant if he was frustrated in the June 2012 incident because McCann would not return her cell phone, and defense counsel objected, acknowledging the prior conviction by stating, "Objection; relevance . . . We've already had punishment and everything on that case, Your Honor." When the State later continued questioning appellant about the June 2012 incident, defense counsel again objected and acknowledged the prior conviction, stating, "Judge, I'm going to object to this line of questioning as being irrelevant. We've already gone through it on the prior case." The trial court sustained the objection and stated, "He's already been found guilty of it, yeah . . . The fact finder has already found that he intentionally shot her."
Then, during the State's closing argument, the State made the following arguments:
I also would ask the Court to take into consideration that in this case, the January shooting, the victim was three months pregnant, as she was eight months pregnant when he actually shot and hit her.Defense counsel then made the following arguments:
. . . .
He committed two violent crimes on separate occasions, another reason I believe that a sentence that would run consecutive is appropriate.
. . . .
There were two violent incidences on two separate occasions, and the defendant has testified today that it was two separate firearms used.
. . . .
So I would ask that a sentence of 20 years [for the offense of aggravated assault with a deadly weapon] be assessed and run consecutive with the cause number CR-2013-428 [sic].
I would ask Your Honor to consider something less than the maximum because [appellant is] already going to do—we know ten for sure, ten flat for sure.
. . . .
And because it's a 3G, I think those of us who work in this business understand he's probably not going to get parole the first time he comes up. And then we double this
one up? I guarantee you that's not going to happen. So Judge, I just ask the Court to consider that.In a final response, the prosecutor stated:
The State's plea for consecutive sentencing—under the facts that we have, I just don't see it. It's a discretionary matter with the Court. There's not a lot I can argue one way or the other . . . If you see it, you do. If you don't, you won't.
But quite frankly, from what we've heard, I'd just ask the Court to look at ten years on everything across the board on this, and not consecutive sentencing.
I'd ask that they be stacked, because the next time, she probably will not be that lucky. Your Honor heard him testify that they're still in communications with each other. They still love each other and want to be together. And I would fear that if the Court did not stack the sentences and max them out, that once released, he would likely go back to [McCann]. And next time we may not be as lucky as we are in these cases where she did not—she wasn't murdered.After hearing arguments, the trial court assessed punishment on the aggravated-assault conviction at ten years' imprisonment to run "consecutive with the other case."
Given all of the evidence in the record—including witness testimony and audiotape evidence regarding the June 6, 2012, offense of aggravated assault with a deadly weapon against McCann when appellant shot a gun, hitting McCann in the face; the judgment from the June 6, 2012, aggravated assault that listed the cause number CR2012-428, which was referenced as the cause number for the prior case by both defense counsel and the State during the trial and is referenced in the judgment in this case as the cause number to which the aggravated assault is to run consecutive; appellant's admissions about the prior offense when he testified during the punishment phase of the trial; the acknowledgments by the defense that appellant had been convicted of the prior aggravated assault and was going to serve at least ten years in prison for it; and evidence that the same trial judge and same counsel for both parties were present at the trial for the previous case only about five months before the trial in this case and that they discussed the previous case throughout trial without any suggestion from the defense that appellant was not the person convicted of the prior offense—we conclude that the record contains sufficient evidence to link appellant to the prior conviction for aggravated assault with a deadly weapon against McCann. See Mungaray v. State, 188 S.W.3d 178, 183-84 (Tex. Crim. App. 2006) (evidence was sufficient to link defendant to previous conviction for cumulation purposes where record included admissions of previous conviction by defense counsel and defendant, witness testimony about previous conviction, and undisputed assertions by State that defendant was convicted of previous offense); Miller, 33 S.W.3d at 262 (evidence was sufficient to link defendant to previous convictions in cumulated sentence where defense admitted that defendant was already serving time for previous convictions, defense was aware of previous convictions and corresponding cause numbers, and defense did not refute State's representations regarding previous convictions); Resanovich v. State, 906 S.W.2d 40, 43 (Tex. Crim. App. 1995) (defense counsel's admission of previous murder sentence was sufficient for cumulation purposes to identify defendant as person previously convicted).
Because we conclude that the evidence is sufficient to link appellant to the prior conviction for aggravated assault against McCann, we overrule appellant's second issue.
B. Specificity of Cumulation Order
In his third issue, appellant argues that the cumulation order contained in the judgment of conviction for the aggravated-assault offense is deficient because it does not contain the required level of specificity. A cumulation order should be "sufficiently specific to allow the Texas Department of Criminal Justice—Institutional Division (TDCJ—ID), to identify the prior with which the newer conviction is cumulated." Ex parte San Migel, 973 S.W.2d 310, 311 (Tex. Crim. App. 1998); see also Williams v. State, 675 S.W.2d 754, 764 (Tex. Crim. App. 1984). The Texas Court of Criminal Appeals has recommended that a cumulation order contain the following five items: (1) the trial court number of the prior conviction; (2) the correct name of the court rendering the prior conviction; (3) the date of the prior conviction; (4) the prison sentence rendered in the prior conviction; and (5) the nature of the prior conviction. Barela v. State, 180 S.W.3d 145, 148 n.6 (Tex. Crim. App. 2005); Banks v. State, 708 S.W.2d 460, 461 (Tex. Crim. App. 1986). However, inclusion of all of the recommended elements is not mandatory. See Barela, 180 S.W.3d at 148 n.6; Banks, 708 S.W.2d at 461. The court of criminal appeals has generally held that cumulation orders containing only one of the five elements are insufficient, see Williams, 675 S.W.2d at 764, but has also held that a cumulation order referencing only a prior cause number is sufficient if the order was entered in the same court as the sentence to which it was made cumulative. See id.; Hamm v. State, 513 S.W.2d 85, 86-87 (Tex. Crim. App. 1974).
Here, the cumulation order in the aggravated-assault judgment lists only the trial-court cause number of appellant's previous conviction. Thus, the cumulation order would generally be considered insufficient, although we note that the order here would fall into the exception noted above, as it was entered in the same court as the previous sentence to which it was made cumulative. See Williams, 675 S.W.2d at 764; Hamm, 513 S.W.2d at 86-87. Appellant contends that the appropriate remedy is to reform the cumulation order to make the sentence run concurrently with the previous sentence. However, even if we were to assume without deciding that the cumulation order contains insufficient detail, appellant cites to no authority in support of his position, and it is well-established that an appellate court may modify a cumulation order to reflect the trial court's judgment on punishment when the record contains the necessary data for reformation. See Banks, 708 S.W.2d at 461-62; Whitley v. State, No. 03-12-00763-CR, 2014 WL 5802335, at *4 (Tex. App.—Austin Nov. 7, 2014, no pet.) (mem. op., not designated for publication); Revels v. State, 334 S.W.3d 46, 56 (Tex. App.—Dallas 2008, no pet.); Madrigal Rodriguez v. State, 749 S.W.2d 576, 580 (Tex. App.—Corpus Christi 1988, pet. ref'd).
In assessing punishment in this case, the trial court stated:
So on Count I [aggravated assault with a deadly weapon], on the basis of the jury's finding of guilt, you have been pronounced guilty. You're assessed ten years' confinement in the Institutional Division, Texas Department of Criminal Justice, consecutive with the other case.Given the multiple references to the prior conviction by the trial court and counsel for the parties as set forth above in appellant's second issue, and given the judgment in this case providing the cause number of the case on which the sentence was cumulated, the record shows that the "other case" referenced by the trial court was the previous aggravated-assault with a deadly weapon against a family member, which was Count I of cause number CR2012-428.
Count II [unlawful possession of a firearm], five years, Texas Department of Criminal Justice, Institutional Division, concurrent with the other cases.
The only one that's stacked is Count I, and it's stacked on the other case. So that will increase your certainty of being in prison for five years. Under the circumstances, I think that's fair.
As noted above, the judgment for the prior aggravated-assault conviction was admitted at trial. The judgment contains the following information: (1) the trial court number of the prior conviction, which is Count I of CR2012-428; (2) the correct name of the court rendering the conviction, which is the 207th Judicial District Court of Comal County, Texas; (3) the date of the prior conviction, which was November 1, 2013; (4) the prison sentence rendered, which was twenty years' imprisonment to run concurrently with the sentences assessed on the same date for unlawful possession of a firearm and endangering a child; and (5) the nature of the prior conviction, which was aggravated assault with a deadly weapon against a family member.
Because the record contains all of the necessary data for us to correctly reflect the trial court's judgment to run the sentence in the aggravated-assault conviction in this case consecutive to the sentence in the prior aggravated-assault case, we will modify the aggravated-assault judgment in this case to include the necessary information. Specifically, we modify the portion of the aggravated-assault judgment that states, "CR2012-427 COUNT I TO RUN CONSECUTIVELY WITH CR2013-428" to state the following:
We also note and modify a clerical error in the judgment in this case that erroneously lists the cause number of the previous conviction as CR2013-428 when all other references to the case in the record show that the correct cause number is CR2012-428. See Tex. R. App. P. 43.2(b); Bigley v. State, 865 S.W.2d 26, 27-28 (Tex. Crim. App. 1993); Figueroa v. State, 250 S.W.3d 490, 518 (Tex. App.—Austin 2008, pet. ref'd). --------
THIS SENTENCE SHALL RUN CONSECUTIVELY AND BEGIN ONLY WHEN THE NOVEMBER 1, 2013 JUDGMENT AND SENTENCE OF 20 YEARS' IMPRISONMENT IN THE FOLLOWING CASE CEASES TO OPERATE: COUNT 1 OF CAUSE NUMBER CR2012-428 IN THE 207TH JUDICIAL DISTRICT COURT OF COMAL COUNTY INVOLVING AGGRAVATED ASSAULT WITH A DEADLY WEAPON AGAINST A FAMILY MEMBER.
Because we are modifying the trial court's judgment based on the record to reflect the trial court's determination in assessing punishment, we overrule appellant's third issue.
Clerical Errors in Judgments
In his fourth issue, appellant contends, and the State agrees, that both of the judgments in this case incorrectly state that appellant pleaded "guilty" to the charged offenses. We have the authority to correct a trial court's judgment when we have the necessary information to do so. See Tex. R. App. P. 43.2(b); Bigley v. State, 865 S.W.2d 26, 27-28 (Tex. Crim. App. 1993); Figueroa v. State, 250 S.W.3d 490, 518 (Tex. App.—Austin 2008, pet. ref'd). After reviewing the record and judgment, we agree that the judgments are in need of correction, as the record shows that appellant pleaded "not guilty" to both offenses. Accordingly, we modify each of the two judgments in this case as follows: under the portion of the judgments stating "Plea to the Offense," we delete the term "GUILTY," and we substitute the term "NOT GUILTY" in its place.
CONCLUSION
Having overruled all of appellant's issues with the exception of his fourth issue regarding clerical errors in the judgments, and having modified both judgments of conviction pursuant to our discussion of appellant's third and fourth issues above, we affirm the trial court's judgments of conviction as modified.
/s/_________
Cindy Olson Bourland, Justice Before Justices Puryear, Pemberton, and Bourland Modified and, as Modified, Affirmed Filed: May 11, 2016 Do Not Publish