Summary
reforming judgment to include deadly weapon finding
Summary of this case from Blackwell v. StateOpinion
No. 05-16-00565-CR
05-09-2017
KEITH ANDREW THORNTON, Appellant v. THE STATE OF TEXAS, Appellee
On Appeal from the Criminal District Court No. 3 Dallas County, Texas
Trial Court Cause No. F-1555048-J
MEMORANDUM OPINION
Before Justices Francis, Lang-Miers, and Whitehill
Opinion by Justice Lang-Miers
Appellant Keith Andrew Thornton appeals his conviction for aggravated assault with a deadly weapon. In two issues, he argues that the trial court erred in denying his motion to dismiss counsel and the trial court abused its discretion by sentencing appellant to imprisonment. By cross-point, the State argues that the trial court judgment should be modified to include an affirmative deadly weapon finding and an affirmative family-violence finding. We modify the trial court's judgment and affirm as modified.
BACKGROUND
Appellant was indicted for aggravated assault with a deadly weapon. TEX. PENAL CODE ANN. § 22.02(a)(2) (West 2011). The indictment states that appellant "has and has had a dating relationship with the said complainant and the said defendant was a member of the complainant's family and household[.]" An enhancement paragraph in the indictment states that appellant had a prior conviction for unlawful possession of a firearm by a felon. Appellant waived his right to a jury and, pursuant to a plea bargain agreement, entered a plea of guilty to the charged offense and true to the enhancement paragraph. The court accepted appellant's plea of guilty, deferred a finding of guilt, placed defendant on deferred-adjudication community supervision for five years, assessed a $1,500 probated fine, and made an affirmative deadly weapon finding. As a condition of appellant's community supervision, the trial court ordered that appellant not "have any form of contact" with the complainant for the duration of his probation term. The State subsequently filed a motion to proceed with an adjudication of guilt alleging that appellant violated his probation by contacting the complainant "on many occasions" during his probation and, on one occasion, threatening to break her jaw.
The indictment included a second enhancement paragraph that alleged that appellant had another prior felony conviction. The paragraph subsequently was struck.
At a hearing, the trial court heard appellant's testimony concerning his motion to dismiss his trial counsel. The trial court denied the motion to dismiss counsel and, at appellant's request, reset the hearing on the motion to adjudicate. At a subsequent hearing on the motion to adjudicate, after hearing testimony from the complainant and appellant, the trial court accepted appellant's plea of true to his alleged probation violations, granted the motion to adjudicate guilt, and sentenced appellant to twenty-five years' imprisonment. The trial court certified appellant's right to appeal and appellant timely appealed.
MOTION TO DISMISS COUNSEL
Appellant argues that the trial court erred in denying his pro se motion to dismiss his court-appointed trial counsel.
Background
Appellant's pro se motion to dismiss counsel alleged that his counsel had shown no interest in his case and only sought a plea agreement, his counsel had failed to meet with him "and/or" acquaint herself with his case, and there was a "[t]otal breakdown of communications between attorney and client." At a hearing, the following exchange took place:
In a pro se letter filed with the motion to dismiss, appellant alleged that his counsel had a "lack of interest" in his case and a conflict of interest because she knew his family and previously represented a family member of his.
THE COURT: You've filed a motion asking to have your counsel dismissed. Tell me why you believe that that's necessary.
[APPELLANT]: Well, ma'am, with all due respect, I just—
THE COURT: I need you to speak up.
[APPELLANT]: Yes, ma'am. With all due respect, I just feel like, you know, my counsel is really not just helping me. Every time she—every time we've had a conference together has been a breakdown in communication.
She comes to me only with what the State has to offer. You know, what the State has to offer is—she's done—
THE COURT: You don't think she's supposed to tell you what the State is offering you?
[APPELLANT]: I mean, I understand that, yes, ma'am.
THE COURT: Okay.
[APPELLANT]: But, I mean, as far as—as far as what we have, as far as what kind of strategy we have, to try to get me reinstated because it's only a technical violations [sic]. It's like, you know, I admit my—
THE COURT: So you think that it's okay for you to commit technical violations?
[APPELLANT]: No. No, I don't think that at all.
THE COURT: Well, if it's just that she's not telling you what you want to hear, then that's not grounds for me to dismiss your counsel.
[APPELLANT]: Yeah, I understand that.
THE COURT: So tell me why you believe that your counsel should be dismissed.
[APPELLANT]: Well, I just feel like it's been a breakdown in communication, period, all through, all since we been—
THE COURT: Now, she was the attorney that originally you were placed on probation—she was your attorney, right?
[APPELLANT]: Yes, ma'am.
THE COURT: Okay. So, but now all of a sudden, you feel like there's a breakdown in communication?
[APPELLANT]: This hasn't been going right.
THE COURT: It hasn't been going the way you want it to.
[APPELLANT]: I mean, as far as communication between the both of us—
THE COURT: If that's all you got, then I'm denying your motion.
[APPELLANT]: Okay.
THE COURT: Yeah, if that's—if that's it, she's not telling you what you want to hear, then I'm denying your motion.
After a discussion concerning the State's recommended sentence, appellant's previous felony convictions, and the State's motion to adjudicate, the court and appellant stated:
THE COURT: . . . you don't really have a grounds [sic] for me to dismiss your counsel just because you don't like them.
[APPELLANT]: Yes, ma'am.
THE COURT: Okay? So I suggest you-all work out, whatever it is that's going on. You know, if you've got some other reason why you feel like, you know, she's not the appropriate attorney for you, then I need to hear that. But if it's just "she's not telling me what I want to hear"—because that's what it sounds like to me.
[APPELLANT]: Yes, ma'am.
Although both sides announced that they were ready to proceed with the motion to adjudicate, the trial court asked appellant's counsel and appellant to confer as to whether they wanted to proceed that day or to reset the hearing so that they could "have some additional time to communicate since there seems to have been a breakdown that is not gonna be resolved." After going off the record, the court announced that appellant's attorney was asking to reset the hearing, and asked appellant, "Is that you-all's request?" Appellant replied, "Yes, ma'am." The court then granted a continuance for the defense to hold the hearing on the motion to adjudicate the following week.
Applicable Law and Standard of Review
We review a trial court's ruling on whether to grant a motion to dismiss appointed counsel under an abuse of discretion standard. King v. State, 29 S.W.3d 556, 566 (Tex. Crim. App. 2000). "A criminal defendant is not entitled to appointed counsel of choice." Dunn v. State, 819 S.W.2d 510, 520 (Tex. Crim. App. 1991). And a trial court has no duty to search for counsel agreeable to a defendant. King, 29 S.W.3d at 566. "[P]ersonality conflicts and disagreements concerning trial strategy are typically not valid grounds for withdrawal." Id. A defendant bears the burden to make the court aware of his dissatisfaction with counsel, to state his grounds for the dissatisfaction, and to substantiate his claim. Hill v. State, 686 S.W.2d 184, 187 (Tex. Crim. App. 1985).
Arguments of the Parties
Appellant contends that the trial court erred in denying his motion to dismiss his counsel because the trial court "failed to adequately inquire into" his complaint and "cut his argument short" and, as a result, prevented him from proving that he was entitled to new counsel. He contends the trial court "needed to know more about what [a]ppellant meant when he complained of a breakdown in communication" between him and his counsel. He argues that the communication breakdown likely led to his receiving insufficient information to participate in decisions or to make informed decisions and that the ruling likely "had a negative impact on" his legal representation.
The State argues that the trial court did not abuse its discretion when it overruled appellant's motion to dismiss counsel. The State contends that the record reflects that the trial court adequately inquired into appellant's complaint about his counsel and the court properly concluded that the crux of appellant's complaint was that his counsel was not telling him what he wanted to hear, which is not sufficient grounds for dismissing counsel. It argues that the trial court's decision to proceed and not ask appellant further questions was not an abuse of discretion but was within the court's broad discretion to manage and control its docket.
The State also notes that the court gave appellant the opportunity to confer with his counsel concerning whether to hold the hearing on the motion to adjudicate that day and, at appellant's request, the court reset the hearing date.
Analysis
Although appellant contends that the trial court abused its discretion by denying his motion to dismiss counsel because the court cut his argument short and did not adequately inquire into his complaint, the record reflects that the trial court repeatedly asked appellant to explain the reason why he believed it was necessary to dismiss his counsel. Each time, appellant responded that there was a "breakdown in communication" between him and his counsel. Appellant stated "this ha[d]n't been going right" and that his attorney only came to him "with what the State has to offer" and not with their strategy to attain reinstatement of his probation. After repeatedly giving appellant the opportunity to explain the reason to dismiss his attorney, the court concluded that appellant's reason for dismissal was that his attorney was not telling him what he wanted to hear and stated that, "[i]f that's all" appellant had, the court was denying the motion. See Maes v. State, 275 S.W.3d 68, 71-72 (Tex. App.—San Antonio 2008, no pet.) (concluding court did not abuse its discretion in denying defendant's motion to dismiss counsel when defendant "offered a vague expression of dissatisfaction with his court-appointed counsel").
In addition, even assuming—without concluding—that the trial court "cut his argument short[,]" the court gave appellant multiple chances to state a reason to dismiss his counsel and appellant did not state a reason other than a breakdown in communication. Likewise, appellant did not contest the court's conclusion that appellant's argument was just "she's not telling me what I want to hear[.]" Additionally, the trial court allowed appellant and his counsel to confer as to whether they would like a continuance on the motion to adjudicate so they could "have some additional time to communicate" and then granted their request to reset the hearing. Trial courts are vested with broad discretion to control and manage their dockets in order to promote efficient and orderly administration of justice while protecting the statutory and constitutional rights of all persons coming before the court. Taylor v. State, 255 S.W.3d 399, 402 (Tex. App.—Texarkana 2008, pet. ref'd); see Marquez v. State, 921 S.W.2d 217, 223 (Tex. Crim. App. 1996) ("The control of the business of the court is vested in the sound discretion of the trial judge."). On this record, we conclude that the trial court did not abuse its discretion by denying appellant's motion to dismiss his court-appointed counsel. We overrule appellant's first issue.
SENTENCING
In his second issue, appellant argues that the trial court abused its discretion by sentencing him to a term of imprisonment because the sentence violates the objectives of the penal code by "inappropriately focus[ing] more on punishment, rather than rehabilitation." The State argues that appellant has not preserved this issue for appeal. Appellant contends that this issue is preserved for appeal because "a specific objection was not necessary" because it "was clear from [a]ppellant's testimony that he was requesting to remain on probation." See TEX. R. APP. P. 33.1(a)(1) (requiring party to show that a complaint was made to the trial court by timely objection that stated the grounds for the objection "unless the specific grounds were apparent from the context"); see also TEX. R. EVID. 103 (requiring party to make timely objection stating "the specific ground, unless it was apparent from the context"). Appellant cites to his testimony during the hearing on the motion to adjudicate in which he asked "the Court not to send [him] to prison" but instead to place him on probation.
To preserve alleged error relating to excessive punishment, a defendant must make a timely request, objection, or motion to the trial court. TEX. R. APP. P. 33.1(a)(1)(A); Castaneda v. State, 135 S.W.3d 719, 723 (Tex. App.—Dallas 2003, no pet.). Appellant did not complain about his sentence either at the time that it was imposed or in a post-trial motion. See Castaneda, 135 S.W.3d at 723.
Appellant cites the following authority to support his argument that a specific objection was unnecessary because his complaint was apparent from the context of the case: Johnson v. State, 970 S.W.2d 716, 719 (Tex. App.—Beaumont 1998, no pet.) (authentication objection); Montgomery v. State, 99 S.W.3d 257, 259-60 (Tex. App.—Fort Worth 2003, pet. struck) (withdrawal of guilty plea); Edwards v. State, 21 S.W.3d 625, 626-27 (Tex. App.—Waco 2000, no pet.) (deadly weapon finding); and Garza v. State, 841 S.W.2d 19, 23 (Tex. App.—Dallas 1992, no pet.) (amount of restitution). But those cases are not persuasive. None of them involve a complaint that punishment violated the objectives of the penal code and was excessive. And those cases do not explain how a complaint that punishment was excessive, especially punishment within the statutory range for that offense, would be apparent from the context and not require an objection at trial.
Appellant also quotes Bedolla v. State, 442 S.W.3d 313, 316 (Tex. Crim. App. 2014):
To avoid forfeiture of a complaint on appeal, all a party has to do is let the trial judge know what he wants and why he thinks he is entitled to it and do so clearly
enough for the judge to understand the request at a time when the trial court is in a proper position to do something about it.But Bedolla is distinguishable. It concerned whether a defendant preserved his complaint about the exclusion of a self-defense jury instruction, particularly whether defendant's request for an instruction was specific enough. Id. at 315-17. But in this case, the issue is not whether a complaint was sufficiently specific; appellant made no complaint to the trial court that his punishment was excessive. We conclude that appellant has not preserved his second issue for appellate review. See Castaneda, 135 S.W.3d at 723.
Even if appellant had preserved his complaint for our review, we would resolve it against him. Appellant argues that the twenty-five-year sentence focuses more on punishment than rehabilitation, and, because his violation was only "technical[,]" he "should have been continued on probation." In addition to the objective of rehabilitation, the penal code has the stated objectives of deterrence and punishment as necessary to prevent likely recurrence of criminal behavior. See TEX. PENAL CODE ANN. § 1.02(1)(A), (C) (West 2011). Appellant pleaded true to the motion to adjudicate his guilt for aggravated assault with a deadly weapon and went open to the court for punishment. Appellant also pleaded true to a prior conviction for unlawful possession of a firearm by a felon. Appellant's twenty-five-year sentence is within the statutory range for the offense, which is five to ninety-nine years or life imprisonment. See TEX. PENAL CODE ANN. §§ 12.32(a), 22.02(b) (West 2011), § 12.42(b) (West Supp. 2016). Based on appellant's criminal history and the nature of the offense, we could not conclude that appellant's sentence violated the objectives of the penal code. In addition, as a general rule, punishment that is assessed within the statutory range for an offense is not excessive or unconstitutionally cruel or unusual. Kirk v. State, 949 S.W.2d 769, 772 (Tex. App.—Dallas 1997, pet. ref'd); see Jackson v. State, 680 S.W.2d 809, 814 (Tex. Crim. App. 1984) (stating it is "the general rule that as long as a sentence is within the proper range of punishment it will not be disturbed on appeal"). We resolve appellant's second issue against him.
MODIFICATION OF JUDGMENT
The judgment in this case shows appellant received a twenty-five-year sentence. By cross-point, the State argues that the judgment should be modified to include an affirmative family-violence finding and an affirmative deadly weapon finding.
Family-Violence Finding
Appellant does not contest that we should modify the judgment to reflect an affirmative family-violence finding. The code of criminal procedure directs that, if a trial court determines that an offense under title five of the penal code—which includes aggravated assault—involved family violence, the trial court shall make an affirmative finding of that fact and enter the affirmative finding in the judgment of the case. TEX. CODE CRIM. PROC. ANN. art. 42.013 (West 2006); see Butler v. State, 189 S.W.3d 299, 302 (Tex. Crim. App. 2006) ("[T]he trial court is statutorily obligated to enter an affirmative finding of family violence in its judgment, if during the guilt phase of trial, the court determines that the offense involved family violence as defined by TEX. FAM. CODE § 71.004(1).").
Section 71.004(1) of the family code provides that "[f]amily violence" means "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, assault, or sexual assault[.]" TEX. FAM. CODE ANN. § 71.004(1) (West Supp. 2016); see TEX. FAM. CODE ANN. § 71.0021(a), (b) (West 2014) (defining "[d]ating violence" as an act "committed against a victim" "with whom the actor has or has had a dating relationship" that "is intended to result in physical harm, bodily injury, assault, or sexual assault" and "dating relationship" as "a relationship between individuals who have or have had a continuing relationship of a romantic or intimate nature").
The indictment states appellant was charged with aggravated assault with a deadly weapon and that appellant "has and has had a dating relationship with the said complainant and the said defendant was a member of the complainant's family and household." Appellant judicially confessed to this offense, including that he was a member of complainant's family and household and had a dating relationship with her. Appellant's plea agreement included an affirmative finding of family violence. During the hearing on the motion to adjudicate, the complainant testified that appellant was on probation "[f]or shooting at" her and testified that he called her "wanting [her] to continue the relationship." Appellant testified that he continued to call the complainant in violation of his probation because, "I mean, love just don't go away just like that" and that he thought they would be able to continue their relationship.
The arrest warrant affidavit states appellant and the complainant "are common law married and have been together for approximately a year."
On this record, we conclude that the trial court was statutorily obligated to include an affirmative finding of family violence in its judgment. See TEX. CODE CRIM. PROC. ANN. art. 42.013; see also Butler v. State, 189 S.W.3d at 302. We decide in favor of the State on its cross-point concerning a family-violence finding.
Deadly Weapon Finding
The State also argues that we should modify the judgment to include an affirmative deadly weapon finding. See TEX. CODE CRIM. PROC. ANN. art. 42A.054(c) (West Supp. 2016) (requiring court to enter a deadly weapon finding in its judgment on an affirmative finding that a deadly weapon was used or exhibited during the commission of a felony offense); see also TEX. CODE CRIM. PROC. ANN. art. 42A.054(d) (requiring court to enter finding that deadly weapon was a firearm in its judgment on an affirmative finding). The State argues that the record affirmatively reflects that the trial court intended to enter a deadly weapon finding and that the record does not contain any facts supporting the position that the trial court intended to enter a finding of "N/A."
On January 1, 2017, after the date of appellant's adjudication of guilt, a non-substantive codification of chapter 42 of the code of criminal procedure took effect. We cite the current version of the statute, which—at the time of his adjudication—was codified at article 42.12, § 3g(a)(2) of the code of criminal procedure.
But appellant contends that the judgment should not include a deadly weapon finding because, based on Guthrie-Nail v. State, 506 S.W.3d 6 (Tex. Crim. App. 2015), a trial judge has discretion to decline to make a deadly weapon finding even after finding the defendant guilty of an offense in which use of a deadly weapon was a charged or necessary element. Appellant contends that, although appellant pleaded guilty to an offense for which the use of a deadly weapon is a necessary element, the record does not reflect an affirmative deadly weapon finding. Citing Guthrie-Nail, 506 S.W.3d at 7, he argues that the entry of "N/A" in the space for "Findings on Deadly Weapon" in the judgment is "an explicit determination" by the court that it was not making a deadly weapon finding. He argues that, because the record does not "indisputably show[]" that the trial court made a deadly weapon finding, this Court should overrule the State's cross-point. The State contends that the record reflects that the trial court intended to enter a deadly weapon finding and that the omission was a clerical error.
We agree with the State and we conclude that Guthrie-Nail is distinguishable. In Guthrie-Nail, pursuant to a plea agreement, the State waived a capital murder charge and appellant pleaded guilty to conspiracy to commit capital murder, as set out in the indictment, in exchange for a fifty-year prison sentence. Id. at 2. The trial judge "questioned appellant at length" concerning the voluntariness of her plea and the rights she was relinquishing, and orally found her guilty of the offense of "conspiracy to commit capital murder just as set forth in the indictment[.]" Id. at 3, 7. But "the trial judge did not orally refer to a deadly-weapon finding, nor d[id] the plea papers make any mention of a deadly-weapon finding." Id. at 3. The written judgment said "N/A" in the space provided for Findings on Deadly Weapon. Id. Over two months after the trial court entered the original judgment, the trial judge signed a judgment nunc pro tunc that changed the deadly weapon finding entry from "N/A" to "Yes, a Firearm" and added a special finding that appellant used or exhibited a deadly weapon. Id. The court of criminal appeals concluded that the record was "far from conclusive" as to whether a deadly weapon finding was made at or before the time the trial court signed the written judgment and remanded the case for a hearing on the judgment nunc pro tunc, specifically concerning whether the judge made a deadly weapon finding. Id. at 2, 7.
The court noted that the record contained what appeared to be docket sheet entries that included a notion, "Deadly Weapon Finding 42.12." Id. at 3.
In light of Guthrie-Nail, before modifying a judgment to include an omitted deadly weapon finding, we first determine whether the absence of a deadly weapon finding was a clerical error and not a conscious decision by the trial court. Id. at 5. In this case, we conclude that the record shows that the omission of the deadly weapon finding was a clerical error and not a conscious decision by the trial court to not make a deadly weapon finding. During the plea hearing, the court and appellant stated:
THE COURT: Also, [the State is] alleging that you used or exhibited a deadly weapon during the course of that offense. So that means that if you are found guilty on this offense that you would have to do half of whatever sentence you received with a minimum of two years.
Do you understand that?
[APPELLANT]: Yes, ma'am.
THE COURT: Do you have any questions about any of that?
[APPELLANT]: No, ma'am.
THE COURT: So if you're already indicted of—if you ever receive a penitentiary sentence on this case, you're going to have to do half of any sentence that you receive with a minimum of two years.
[APPELLANT]: Yes, ma.am.
THE COURT: Before you would be eligible for parole.
[APPELLANT]: Yes, ma'am.
The court accepted appellant's plea of guilty and deferred a finding of guilt. In the order of deferred adjudication, the court included an affirmative finding of a deadly weapon, "YES, A FIREARM." The court also included a special finding in the order of deferred adjudication:
DEADLY WEAPON THE COURT FINDS DEFENDANT USED OR EXHIBITED A DEADLY WEAPON, NAMELY, FIREARM, DURING THE COMMISSION OF A FELONY OFFENSE OR DURING IMMEDIATE FLIGHT THEREFROM OR WAS A PARTY TO THE OFFENSE AND KNEW THAT A DEADLY WEAPON WOULD BE USED OR EXHIBITED. TEX. CODE CRIM. PROC. ART. 42.12 §3G.
In addition, the plea agreement between appellant and the State included an "[a]ffirmative finding of deadly weapon[.]"
Subsequently, during the hearing on the State's motion to adjudicate, the court and appellant had the following exchange:
THE COURT: Mr. Thornton, you understood when you were placed on probation that you were pleading true to an allegation that you used a deadly weapon?
[APPELLANT]: Yes, ma'am.
THE COURT: Did you understand that?
[APPELLANT]: Yes, ma'am.
THE COURT: And you understood while you were on probation, that if you ever received a penitentiary sentence, you would have to do half of that sentence before you would ever be eligible for parole.
You understood that, right?
[APPELLANT]: Yes, ma'am.
THE COURT: Anything else from either side.
[PROSECUTOR]: No, your honor.
[DEFENSE COUNSEL]: No, your honor.
THE COURT: All right. The Court accepts the defendant's plea of true to all the allegations in the Motion to Proceed to Adjudication of Guilt.
The Court is granting the motion, adjudicating the defendant. The Court is assessing the defendant's punishment at 25 years imprisonment in the Texas Department of Criminal Justice Institutional Division. The Court is crediting the defendant with his back time.
As a result, the record reflects that, almost immediately prior to sentencing appellant, the court focused on and discussed with appellant his previous plea of true that he used a deadly weapon and his understanding that, if he received a penitentiary sentence, he would have to serve half of the sentence before he would be eligible for parole. See TEX. GOV'T CODE ANN. § 508.145(d)(1), (2) (West Supp. 2016) ("[A]n inmate who is serving a sentence for . . . an offense for which the judgment contains an affirmative finding [of use or exhibition of a deadly weapon] . . . is not eligible for release on parole until the inmate's actual calendar time served, without consideration of good conduct time, equals one-half of the sentence or 30 calendar years, whichever is less, but in no event is the inmate eligible for release on parole in less than two calendar years."); Sampson v. State, 983 S.W.2d 842, 843 (Tex. App.—Houston [1st Dist.] 1998, pet. ref'd) ("When a trial court's judgment reflects an affirmative finding that a defendant used a deadly weapon during the commission of a felony, the defendant's parole-eligibility date is extended."). Appellant argues that "the trial court's questions refer to what [a]ppellant understood at the time he pled guilty" and the trial court's entry of "N/A" in the judgment is an "explicit determination that a deadly-weapon finding was not being made." But, in contrast to Guthrie-Nail where "the trial judge did not orally refer to a deadly-weapon finding, nor d[id] the plea papers make any mention of a deadly-weapon finding[,]" 506 S.W.3d at 3, here—both during the plea hearing and immediately prior to sentencing appellant during the hearing on the motion to adjudicate—the trial court discussed appellant's plea of true concerning his use of a deadly weapon and the effect of his use of a deadly weapon on his parole eligibility. In addition, the order of deferred adjudication included an affirmative deadly weapon finding and a special finding that appellant used a deadly weapon. On this record, we conclude that the omission of the deadly weapon finding from the judgment was a clerical error and not a conscious decision by the trial court. We decide in favor of the State on its cross-point concerning a deadly weapon finding.
This Court has the power to modify a judgment to make the record speak the truth when we have the necessary information before us to do so. See TEX. R. APP. P. 43.2(b); Bigley v. State, 865 S.W.2d 26, 28 (Tex. Crim. App. 1993); French v. State, 830 S.W.2d 607, 609 (Tex. Crim. App. 1992); Asberry v. State, 813 S.W.2d 526, 529-30 (Tex. App.—Dallas 1991, pet. ref'd). Here, this Court has the necessary information to correct the judgment to include both a family-violence finding and a deadly weapon finding. Accordingly, we modify the trial court's judgment adjudicating guilt to include an affirmative finding of family violence and an affirmative deadly weapon finding by deleting "N/A" and reciting, "YES, A FIREARM" under "Findings on Deadly Weapon[.]"
As modified, we affirm the trial court's judgment.
CONCLUSION
We modify the trial court's judgment and affirm as modified.
/Elizabeth Lang-Miers/
ELIZABETH LANG-MIERS
JUSTICE Do Not Publish
Tex. R. App. P. 47.2(b) 160565F.U05
JUDGMENT
On Appeal from the Criminal District Court No. 3, Dallas County, Texas
Trial Court Cause No. F-1555048-J.
Opinion delivered by Justice Lang-Miers, Justices Francis and Whitehill participating.
Based on the Court's opinion of this date, the judgment of the trial court is MODIFIED to include an affirmative family-violence finding and an affirmative deadly weapon finding by deleting "N/A" and reciting, "YES, A FIREARM" under "Findings on Deadly Weapon[.]"
As MODIFIED, the judgment is AFFIRMED. Judgment entered this 9th day of May, 2017.