Opinion
No. 05-03-01189-CR.
Opinion Filed February 25, 2004. DO NOT PUBLISH. Tex.R.App.P. 47.
On Appeal from the 265th Judicial District Court, Dallas County, Texas, Trial Court Cause No. F03-48211-KR. Affirm as Modified.
Before Justices JAMES, WRIGHT, and BRIDGES.
OPINION
Bryan Keith Robinson waived a jury trial and entered a non-negotiated guilty plea to aggravated assault of a public servant. See Tex. Pen. Code Ann. §§ 22.01, 22.02 (Vernon Supp. 2004). The trial court sentenced appellant to five years' confinement and made an affirmative finding that appellant used or exhibited a deadly weapon, a motor vehicle, during the commission of the offense. In two points of error, appellant contends the evidence is legally insufficient to support the judgment and his guilty plea was involuntary. We will modify the trial court's judgment and affirm as modified. In his second point of error, appellant argues his guilty plea was involuntary because his attorney coerced him into pleading guilty. Appellant argues the trial court abused its discretion in denying his motion for new trial because appellant proved his attorney told appellant that if he pleaded guilty to the offense, he would get probation. The State responds the record shows appellant's plea was not involuntary, and the trial court did not abuse its discretion in denying appellant's motion for new trial. We agree with the State. The record shows the trial judge properly admonished appellant orally and in writing. See Tex. Code Crim. Proc. Ann. art. 26.13(a), (d) (Vernon Supp. 2004); Kirk v. State, 949 S.W.2d 769, 771 (Tex. App.-Dallas 1997, pet. ref'd). During the plea hearing, appellant testified he understood the charges in the indictment and the punishment range for the offense, and he freely and voluntarily signed a judicial confession. Appellant testified he was pleading guilty because he was guilty and for no other reason; no one promised him anything or threatened, forced, or coerced him to enter his guilty plea; and he understood the judge would determine the punishment after hearing all of the evidence. The trial judge passed the case for a presentence investigation report. During the sentencing hearing, appellant asked the judge for probation, but testified he understood the judge would decide his punishment. Appellant testified he worked at a fast food restaurant; he and Maurice Jones drove to that restaurant, where appellant dared Jones to "do the robbery;" and Jones went inside the restaurant and took money at gunpoint. Appellant drove the vehicle around the restaurant while waiting for Jones to come outside. Appellant testified that when Jones came outside the restaurant carrying a bag, police officers tackled Jones in front of the vehicle. Appellant hit a police officer with the vehicle as he tried to drive away. Appellant testified the officer sustained only minor bruises. At the hearing on the motion for new trial, appellant testified his lawyer stated that if appellant pleaded guilty, he was guaranteed to receive probation. Appellant testified he believed he had to follow whatever his lawyer said in order to get probation and he signed the judicial confession because his lawyer told him to sign it. Whenever the prosecutor or judge asked him a question during the plea hearing, appellant would look at his lawyer to see how to answer. Appellant's lawyer would nod his head yes or no, and appellant would respond accordingly. Appellant denied he dared Jones to commit the robbery or that he drove around the restaurant waiting for Jones to come outside. Appellant only answered "yes" to the prosecutor's questions because his lawyer gestured to appellant to answer yes. Appellant's mother testified that appellant's lawyer told her the only way appellant could get probation was if he pleaded guilty and asked the judge for probation. Appellant's mother also testified that during the sentencing hearing, appellant would look to his lawyer each time he was asked a question, and the lawyer made gestures by nodding his head to let appellant how when to answer yes or no. Steven Bell, appellant's trial lawyer, testified he never gave appellant or family members a guarantee that appellant would get probation. He told appellant about his options, of whether to seek a jury trial or go before the judge, and explained all of the documents to appellant before he signed them. Bell testified he told appellant the PSI went very well and he thought appellant had a good chance of getting probation because appellant had never before been in trouble. Bell testified he does not "coach" his clients as to what to say to the judge when questioned, and he did not gesture to appellant to tell him when to say yes or no. There is nothing that compels the trial court to accept as true appellant's version of events. See Lewis v. State, 911 S.W.2d 1, 7 (Tex.Crim.App. 1995). Where there is conflicting evidence, as there is here, we cannot say the trial court abused its discretion in denying appellant's motion for new trial on a claim that his plea was involuntary. See Salazar v. State, 38 S.W.3d 141, 148 (Tex.Crim.App. 2001). The fact that appellant obtained greater punishment than he expected did not render his plea involuntary. See Tovar-Torres, 860 S.W.2d 176, 178 (Tex. App.-Dallas 1993, no pet.). We conclude the record does not support appellant's complaint and that the trial court did not abuse its discretion in overruling the motion for new trial. We overrule appellant's second point of error. In his first point of error, appellant argues the evidence is legally insufficient to support the judgment because the judgment shows the offense as aggravated assault "by" a public servant, and appellant is not a public servant. Appellant asks this Court to reverse his conviction or, in the alternative, to modify the judgment to reflect the trial court proceedings. The State responds the record clearly shows appellant was charged with and convicted of aggravated assault "on" a public servant, and does not object to modifying the judgment to correct the clerical error. We sustain appellant's first point of error to the extent he seeks modification of the judgment. The record shows appellant was charged with, pleaded guilty to, and was convicted of aggravated assault of a public servant. We have the power to modify incorrect judgments 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); Asberry v. State, 813 S.W.2d 526, 529-30 (Tex. App.-Dallas 1991, pet. ref'd). Accordingly, we modify the trial court's judgment to show the offense convicted of as "aggravated assault of a public servant." As modified, we affirm the trial court's judgment.