Opinion
NO. 12-15-00173-CR
07-20-2016
MICHAEL BENJAMIN JOHNSON, APPELLANT v. THE STATE OF TEXAS, APPELLEE
APPEAL FROM THE 241ST JUDICIAL DISTRICT COURT SMITH COUNTY, TEXAS
MEMORANDUM OPINION
Michael Benjamin Johnson appeals his conviction for aggravated assault with a deadly weapon. In his sole issue, Appellant argues that the judgment should be modified to correctly reflect the proceedings below. We modify the trial court's judgment, and affirm as modified.
BACKGROUND
Appellant was indicted for aggravated assault with a deadly weapon. The indictment also alleged that Appellant had been convicted of a prior felony, enhancing the punishment level to that of a first degree felony. Appellant pleaded "not guilty" to the charged offense and "not true" to the enhancement. The case proceeded to a jury trial. The jury found Appellant guilty of the offense and the enhancement to be true, and sentenced him to life imprisonment. The trial court's judgment reflects that Appellant was convicted of aggravated assault with a deadly weapon, but cites Texas Penal Code Section 22.01, which is the statute for assault, as the statute for the offense. This appeal followed.
ERROR IN THE JUDGMENT
In his sole issue on appeal, Appellant argues that the judgment should be modified to reflect that he was found guilty of aggravated assault with a deadly weapon under Texas Penal Code Section 22.02, rather than assault under Section 22.01.
We have authority to modify a judgment to 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, 27-28 (Tex. Crim. App. 1993); Asberry v. State, 813 S.W.2d 526, 529 (Tex. App.-Dallas 1991, pet. ref'd). The judgment incorrectly cites the statute for Appellant's conviction as Texas Penal Code Section 22.01. The record reflects that Appellant was convicted of aggravated assault with a deadly weapon under Texas Penal Code Section 22.02(a)(2). Accordingly, the trial court's judgment should be modified to reflect that Appellant is guilty of aggravated assault with a deadly weapon under Texas Penal Code Section 22.02(a)(2).
Appellant's sole issue is sustained.
DISPOSITION
Having sustained Appellant's sole issue, we modify the judgment of the trial court to reflect that Appellant was found guilty of aggravated assault with a deadly weapon under Texas Penal Code Section 22.02(a)(2), and affirm as modified. See TEX. R. APP. P. 43.2(b).
JAMES T. WORTHEN
Chief Justice Opinion delivered July 20, 2016.
Panel consisted of Worthen, C.J., Hoyle, J., and Neeley, J.
(DO NOT PUBLISH)
JUDGMENT
Appeal from the 241st District Court of Smith County, Texas (Tr.Ct.No. 241-0950-14)
THIS CAUSE came on to be heard on the appellate record and the briefs filed herein; and the same being inspected, it is the opinion of the Court that the trial court's judgment below should be modified and, as modified, affirmed.
It is therefore ORDERED, ADJUDGED and DECREED that the trial court's judgment below be modified to reflect that Appellant was found guilty of aggravated assault with a deadly weapon under Texas Penal Code Section 22.02(a)(2); and as modified, the trial court's judgment is affirmed; and that this decision be certified to the trial court below for observance.
James T. Worthen, Chief Justice.
Panel consisted of Worthen, C.J., Hoyle, J., and Neeley, J.