Opinion
No. 05-15-01539-CR
06-15-2017
On Appeal from the 265th Judicial District Court Dallas County, Texas
Trial Court Cause No. F-1431115-R
ORDER
A review of the record shows a jury convicted Devante Jerome Foster of aggravated sexual assault of a child, and the trial court assessed punishment at thirty years in prison. The judgment in this case, however, is the one used in proceedings in which the defendant waives a jury trial and proceeds in a trial before the court. The form for a "Judgment of Conviction by Court—Waiver of Jury Trial" does not contain the same terms as a judgment on a plea of not guilty before a jury. The judgment incorrectly shows appellant pleaded guilty when the record shows he pleaded not guilty. The judgment also includes the notation "LIFE" under the section entitled, "Terms of Plea Bargain," when the record shows there was no plea bargain. Moreover, the judgment does not reflect that appellant was convicted by a jury and punishment was assessed by the trial court.
The Texas Rules of Appellate Procedure require that we not affirm or reverse a judgment or dismiss an appeal if (1) the trial court's erroneous action or failure to act prevents the proper presentation of a case to the court of appeals and (2) the court can correct its action or failure to act. See TEX. R. APP. P. 44.4(a); Felder v. State, No. 03-13-00706-CR, 2014 WL 3560426, at *1 (Tex. App.—Austin July 18, 2014, no pet.) (per curiam) (mem. op., not designated for publication) (abating appeals and remanding to trial court where wrong judgment forms used, and directing trial court to enter corrected judgments of conviction containing all statutorily mandated information).
Accordingly, this Court ORDERS the trial court to enter a corrected judgment of conviction in the above cause that contains all of the statutorily mandated information. We ORDER the trial court to transmit a supplemental clerk's record containing the corrected judgment of conviction to this Court no later than June 26, 2017. This case was submitted on April 19, 2017, so time is of the essence.
We DIRECT the Clerk to send copies of this order to the Honorable Jennifer Bennett, Presiding Judge of the 265th Judicial District Court, and to all counsel in the case.
This appeal is ABATED to allow the trial court to comply with this order. The appeal shall be reinstated TWENTY DAYS from the date of this order or when we receive the supplemental clerk's record, whichever is earlier.
/s/ MOLLY FRANCIS
PRESIDING JUSTICE