Opinion
No. 05-14-00382-CR No. 05-14-00383-CR
06-03-2015
VINCENT RAY SETTLES, Appellant v. THE STATE OF TEXAS, Appellee
On Appeal from the Criminal District Court No. 3 Dallas County, Texas
Trial Court Cause Nos. F14-00085-J and F14-00086-J
MEMORANDUM OPINION
Before Justices Myers, Evans, and Brown
Opinion by Justice Myers
Appellant Vincent Ray Settles was convicted by a jury of unlawful possession of a firearm by a felon and aggravated assault with a deadly weapon. The trial court assessed a punishment of ten years' imprisonment in the unlawful possession of a firearm case. In the aggravated assault case, the trial court accepted appellant's plea of true to both of the indictment's enhancement paragraphs, found the two enhancement paragraphs true, and assessed punishment at forty years' imprisonment. In two issues, appellant contends the trial court erred by denying his requested jury instruction for a lesser-included offense in the aggravated assault case, and that the trial court should not have overruled appellant's objection to two State's exhibits in the unlawful possession of a firearm by a felon case. As modified, we affirm the trial court's judgments.
Cause number 05-14-00382-CR (F14-00085-J).
Cause number 05-14-00383-CR (F14-00086-J).
BACKGROUND AND PROCEDURAL HISTORY
Lorenza Padilla testified that she was living in a second-floor apartment at the Venue at Greenville apartments on July 8, 2013, in Dallas, Texas. She was in her apartment on that day when she heard what sounded like an iron rod being thrown to the ground. She went to the window and looked out over the parking lot, but saw nothing. She soon heard what sounded like a thump in the area of her kitchen door and went to the window near the door to investigate. She was opening the blinds when she heard a thud on her door, followed by another thud, at which point a man knocked down the door and landed on the floor of Padilla's apartment. Padilla recalled that the man, a black male, "seemed to be very drunk." She saw a gun in his hand. Padilla jumped over the man's legs while he was still lying on the floor and fled out the door of the apartment. Padilla made it down the first set of stairs before the man caught up to her, put his arm around her neck, and held a gun to her head. Padilla thought the man was going to kill her. She recalled that he was saying something to her in English, but Padilla, who spoke only Spanish, did not understand him. She asked him in Spanish if he wanted money, pointing toward the door to her apartment and saying "dinero." The man then let Padilla go and she ran to another apartment where a woman she knew let her in and called the police.
Padilla did not speak English. She testified at trial through a Spanish-speaking interpreter.
The police took photographs of Padilla's injuries. At trial she identified photographs of her injuries that showed redness on her neck and some scratches.
Padilla testified that she first saw the gun in the man's hand when he fell into her apartment. She testified that the gun seemed to be black but she just glanced at it. When asked if she saw the gun or could feel it when it was placed against her neck, Padilla testified: "[W]hen it was here, I could feel it, I—and then I could see it. I—I just was very afraid." She admitted on cross-examination that she originally told officers that these events occurred inside her apartment rather than on the stairwell. She also testified that she had previously seen the man who broke into her apartment smoking and drinking on the stairs of the apartment complex, and thought he lived at the complex.
Other evidence showed that Dallas police received four 911 calls reporting an armed man at the Venue at Greenville apartments on July 8, 2013. One of those 911 calls was made by Alice Cabellero, who was working at the apartment complex's leasing office on the day in question. She testified that she made the 911 call after she saw a man running towards the leasing office with a gun. She described him as a black male wearing a white t-shirt and blue jeans. She told the 911 operator that the man was running towards building 15. She followed him through the apartment complex to building 17, arriving there at around the same time as the Dallas Police officers responding to the 911 calls.
The first Dallas officers to arrive at the scene were Officer Emily Bailey and her senior training officer. Officer Bailey testified that at around 5:00 to 6:00 p.m. on July 8, 2013, she was on patrol with a senior training officer--she was on the fourth or fifth week of her officer training--when they received a high-priority call about a person with a weapon at an apartment complex at 5759 Pineland who was "actively shooting." The officers pulled up to the street before the gate to the complex, where a woman flagged them down and told them "he's in there, he's in there." The officers entered the complex and drove around looking for a man matching the description they had been given--an armed black male with a white t-shirt and blue jeans. When Officer Bailey, who was driving, drove around the corner of one building, she saw a black male in a white t-shirt and blue jeans kicking in a window. Officer Bailey identified this man in court as appellant. After the officers got out of the squad car, they approached appellant on foot with their weapons drawn and ordered him to show them his hands, but appellant did not respond. Then, suddenly, appellant fell forward to the ground, and was resting on his hands. The officers continued ordering appellant to show them his hands; he did not comply. Appellant got up and tried to run away, but Officer Bailey pursued appellant "and took him to the ground." With the assistance of other officers, she handcuffed appellant. After the officers handcuffed appellant, they carried him and placed him in one of the patrol cars.
Officer Bailey testified that appellant "was not acting like a sober person." She added, "I think he was under the influence of something." Officer Bailey also testified that appellant continued struggling after he was handcuffed and placed in the squad car—trying to kick out the windows. The officers removed him from the vehicle and held him down.
After the officers got appellant under control, Officer Bailey went around the complex and started interviewing potential witnesses. She tried to interview Padilla but "it didn't work" because Padilla spoke only Spanish. A Spanish-speaking officer was brought in to talk to her.
Officers also interviewed Daniel Lynn, who lived in a ground-floor apartment in building 17 at the Venue at Greenville apartments. Lynn was at home that day with his father, his brother Clifton, his brother's girlfriend, and his brother's friend. He went outside to smoke a cigarette and saw appellant, whom he recognized as a person that lived "like cater-corner from us" at the complex, "acting erratic and paranoid." Lynn could see appellant had a gun. Appellant went up the stairs to the floor above Lynn's apartment. Lynn went back into his apartment, locked the door, and told his brother to call 911. He told everyone to get back into their rooms and told his father to get down on the floor. They soon heard two gunshots and loud noises that sounded like someone running coming from the floor above Lynn's apartment. Then they "heard a boom against the door," and a window inside their apartment broke only seconds later. Someone had entered their apartment. Lynn and his companions barricaded themselves in two back bedrooms; they could hear someone outside "rustling around" in the apartment. They stayed hidden until they knew the police had entered the apartment. Lynn testified that the apartment "was trashed." The police investigated inside Lynn's apartment and dusted for fingerprints. After they left, as he was cleaning up the apartment, Clifton found a .40 caliber Smith and Wesson handgun hidden underneath some clothing. He called the police and they took custody of the gun.
Clifton made one of the recorded 911 calls that were introduced into evidence.
Lynn testified that neither he nor his brother actually saw the person who entered their apartment.
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Dallas Police officers also searched the second-floor apartment at the Venue at Greenville where Brandon Dunn lived with his grandparents and appellant, his uncle. Dunn testified that when he arrived home from work on the afternoon of July 8, 2013, the police were there waiting. He signed a consent form that allowed officers to search the apartment. Inside the apartment, Dallas police officer Kevin Moss found two fired cartridge casings and a magazine from a pistol that held live rounds. He also saw a defect in the wall that was consistent with a fired bullet. Dunn did not recall seeing any ammunition or shell casings about the apartment when he left for work that morning.
DISCUSSION
1. Lesser-Included Offense
In his first issue, appellant contends the trial court erred by denying his request for a jury instruction on a lesser-included offense of simple assault by threat in the aggravated assault case, cause number 05-14-00383-CR.
Appellant was charged with aggravated assault by threat with a deadly weapon in 05-14-00383-CR. The indictment alleged that on or about July 8, 2013, appellant "did unlawfully then and there intentionally and knowingly threaten LORENZA PADILLA with imminent bodily injury, and said defendant did use or exhibit a deadly weapon, to-wit: a FIREARM, during the commission of the assault." A person commits simple assault if he intentionally, knowingly, or recklessly causes bodily injury to another. TEX. PENAL CODE ANN. § 22.01(a)(1). To obtain a conviction for simple assault by threat, the State must establish that the accused intentionally or knowingly threatened another with imminent bodily injury. Id. § 22.01(a)(2). Section 22.02 provides that a person commits aggravated assault if he commits assault under section 22.01 and uses or exhibits a deadly weapon during the commission of the assault. See id. § 22.02(a)(2); see also Goldsmith v. State, No. 14-12-00614-CR, 2014 WL 261007, at *6 (Tex. App.—Houston [14th Dist.] Jan. 23, 2014, no pet.) (mem. op., not designated for publication) (elements of aggravated assault by threat are that (1) a person, (2) intentionally or knowingly, (3) threatened another with imminent bodily injury, (4) while using or exhibiting a deadly weapon).
In requesting the lesser-included instruction on assault at trial, appellant's trial counsel directed the trial court to Padilla's testimony. Counsel stated, "She testified that the assailant grabbed her around the neck and scratched her," and that "[t]here was some pictures of the scratches." He then argued:
Her testimony was that she saw a weapon when the assailant fell down at the threshold of the apartment and she felt what was consistent with a weapon, but I don't think there was any testimony—I think it raises the possibility—certainly gives us the opportunity to ask for a lesser included offense should the jury feel like the use of the firearm at that specific point in time was insufficient.The State responded that the only testimony was Padilla's testimony that the assailant put his arm around her neck and held a gun to her head at the same time, and that "I don't believe there's any evidence of a lesser assault." The trial court told the parties that "I'm going to allow for the lesser assault," but after taking a recess it returned with a charge that omitted the lesser-included offense. The charge allowed the jury two options: conviction for aggravated assault with a deadly weapon or acquittal. Appellant's trial counsel objected as follows:
Concerning F14-00086, we would reurge our request to include within that charge a lesser-included offense of the Class A misdemeanor assault. We would suggest that the--that that evidence has been raised by the--that that charge has been raised by the evidence.The State responded that the only testimony in front of the court was Padilla's testimony that the assailant grabbed her from behind and placed a gun to her head. The trial court held to its previous determination not to include simple assault in the charge.
Specifically, the victim stated—Miss Padilla stated that she was grabbed about the neck. There's some testimony concerning what would be considered bodily injury in that regard in the event that the jury has a reasonable doubt concerning whether or not a weapon was used.
Certainly, her testimony was that a weapon was used—was seen by her. I believe her testimony was that she saw the weapon when the assailant fell at the threshold. At that point, the assailant then approached her from behind. She was questioned concerning that.
Her testimony was that she was very scared, and I think there's at least the reasonable possibility that the—that the jury could have reasonable doubt concerning whether or not a weapon was used at that specific point in time. Her testimony was that she didn't hear any threats because the assailant was speaking in English, and she was talking to him in Spanish; she doesn't understand any English.
I understand the Court's position that if a gun is placed against someone's head, that that, in and of itself would be a threat, but, also, in the event that the jury has a reasonable doubt concerning that, then the lesser-included misdemeanor would remain. And that's why we're asking that be placed in the Court's Charge.
Our first duty in analyzing a jury charge issue is to decide whether error exists. Ngo v. State, 175 S.W.3d 738, 743-44 (Tex. Crim. App. 2005). If we find error, we analyze that error for harm. Id. The degree of harm necessary for reversal depends on whether the appellant preserved the error by objection. Id. If error occurred and appellant objected at trial, we determine whether the error was "calculated to injure" the appellant's rights, which means there must be "some harm" to the accused resulting from the error. Barrios v. State, 283 S.W.3d 348, 350 (Tex. Crim. App. 2009) (citing Almanza v. State, 686 S.W.2d 157, 171 (Tex. Crim. App. 1984)).
To determine whether the lesser-included offense instruction requested by appellant should have been given, we follow a two-step analysis. Rousseau v. State, 855 S.W.2d 666, 672-73 (Tex. Crim. App. 1993); Royster v. State, 622 S.W.2d 442, 446 (Tex. Crim. App. 1981) (plurality op. on reh'g). The first step asks whether the lesser-included offense is included within the proof necessary to establish the offense charged. McKithan v. State, 324 S.W.3d 582, 587 (Tex. Crim. App. 2010). We compare the statutory elements and any descriptive averments in the indictment for the greater offense with the statutory elements of the lesser-included offense. Ex parte Amador, 326 S.W.3d 202, 206 n.5 (Tex. Crim. App. 2010); Ex parte Watson, 306 S.W.3d 259, 263 (Tex. Crim. App. 2009); Hall v. State, 225 S.W.3d 524, 535-36 (Tex. Crim. App. 2007); see also TEX. CODE CRIM. PROC. ANN. art. 37.09. This step is a question of law. Hall, 225 S.W.3d at 535.
The second step is to determine if there is some evidence from which a rational jury could acquit the defendant of the greater offense, while convicting him of only the lesser-included offense. Guzman v. State, 188 S.W.3d 185, 188-89 (Tex. Crim. App. 2006); Salinas v. State, 163 S.W.3d 734, 741 (Tex. Crim. App. 2005). The evidence must establish the lesser-included offense as "a valid rational alternative to the charged offense." Segundo v. State, 270 S.W.3d 79, 91 (Tex. Crim. App. 2008); see also Rice v. State, 333 S.W.3d 140, 146 (Tex. Crim. App. 2011). We review all of the evidence presented at trial. Hayward v. State, 158 S.W.3d 476, 478-79 (Tex. Crim. App. 2005); Rousseau, 855 S.W.2d at 673. Anything more than a scintilla of evidence is sufficient to entitle a defendant to a lesser charge. Goad v. State, 354 S.W.3d 443, 446 (Tex. Crim. App. 2011). In determining whether the evidence raises the requested lesser-included offense, we do not consider the credibility of the evidence or whether it conflicts with other evidence. Saunders v. State, 840 S.W.2d 390, 391 (Tex. Crim. App. 1992).
Appellant argues that an instruction on simple assault by threat should have been included in the charge. Neither side disputes that, as a general rule, simple assault by threat would be a lesser-included offense of aggravated assault by threat, the charged offense. The crucial distinction between simple assault by threat and aggravated assault by threat, as charged, is that an aggravated assault charge requires the State to establish that appellant used or exhibited a deadly weapon during the commission of the assault, whereas a charge of simple assault by threat does not. See TEX. PENAL CODE ANN. §§ 22.01(a)(2), 22.02(a)(2); Irving v. State, 176 S.W.3d 842, 845-46 (Tex. Crim. App. 2005); Bridges v. State, 389 S.W.3d 508, 512 (Tex. App.—Houston [14th Dist.] 2012, no pet.); Perry v. State, No. 06-13-00051-CR, 2014 WL 3973929, at *9 (Tex. App.—Texarkana Aug. 15, 2014, pet. ref'd) (mem op., not designated for publication); Hosea v. State, No. 14-08-00337-CR, 2009 WL 6338617, at *3 (Tex. App.—Houston [14th Dist.] Oct. 6, 2009, pet. ref'd) (mem. op., not designated for publication). Thus, the elements of simple assault by threat are contained within the proof necessary to establish aggravated assault by threat. See Irving, 176 S.W.3d at 845-46.
But at trial appellant's counsel argued for an instruction on simple assault based on bodily injury to Padilla. While assault by threat is a lesser-included offense of aggravated assault by threat, assault by causing bodily injury is not a lesser-included offense of aggravated assault by threat. See Hall, 225 S.W.3d at 531 (noting that "[a]ssault by committing bodily injury is a lesser-included offense of aggravated assault by inflicting serious bodily injury, but not of aggravated assault by threat with a deadly weapon"); Irving, 176 S.W.3d at 845-46 (providing that simple assault is a lesser-included offense of aggravated assault when the conduct constituting the simple assault is the same conduct alleged in the aggravated assault charge); Jones v. State, No. 01-13-00431-CR, 2014 WL 5500485, at *3 (Tex. App.—Houston [1st Dist.] Oct. 30, 2014, pet ref'd) (mem. op., not designated for publication) ("[M]isdemeanor assault by bodily injury is not a lesser-included offense of aggravated assault by threat . . . ."). And if an appellant's argument on appeal regarding a defensive issue or a lesser-included offense does not comport with his objection or request at trial, his complaint is not preserved for review. See Penry v. State, 903 S.W.2d 715, 753 (Tex. Crim. App. 1995); Alcoser v. State, 256 S.W.3d 398, 400 (Tex. App.—San Antonio 2008, no pet.). As a result, appellant's argument was not preserved for appellate review.
Furthermore, even if we assume the issue was preserved for our review, the evidence in this case did not raise the lesser-included offense. Appellant argues that because Padilla gave two different versions of where the events occurred, a jury could have believed that the part of Padilla's testimony that appellant held a gun to her head or used a gun was either an assumption or an embellishment. This argument, however, overlooks the standard of review we must apply. The question we must answer is whether there is some evidence in this record that would permit a rational trier of fact to find that, if the defendant is guilty, he is guilty only of the lesser-included offense. See Rice, 333 S.W.3d at 145. Additionally,
While it is true that the evidence may be weak or contradicted, the evidence must still be directly germane to the lesser-included offense and must rise to a level that a rational jury could find that if Appellant is guilty, he is guilty only of the lesser-included offense. Meeting this threshold requires more than mere speculation—it requires affirmative evidence that both raises the lesser-included offense and rebuts or negates an element of the greater offense.Cavazos v. State, 382 S.W.3d 377, 385 (Tex. Crim. App. 2012).
The evidence at trial showed that the attacker broke down Padilla's door and fell into her apartment. Padilla testified that she saw a gun in the man's hand when he entered the apartment. Padilla jumped over his legs to get out of her apartment. He caught up to her at the bottom of the stairs, putting his arm around her neck and placing a gun to her head. Padilla testified that she could feel the gun and then saw it. She thought the man was going to kill her.
Padilla testified that the gun was placed to her head during the offense. Other evidence also showed that appellant had a gun during the incident at the Venue at Greenville apartments. There is no evidence appellant assaulted Padilla but did not use or exhibit a firearm, nor does appellant direct us to evidence "directly germane" to a simple assault. Because we find no affirmative evidence in the record that appellant was guilty of only simple assault, even if we assume appellant's issue was preserved, the trial court properly denied appellant's request for a lesser-included offense instruction. We overrule appellant's first issue.
2. Unlawful Possession of a Firearm by a Felon
In his second issue, appellant contends the trial court erred by overruling appellant's objection to an Arkansas judgment and commitment order, State's exhibits 59 and 59-A, in the unlawful possession of a firearm case. Appellant asserted that the judgment and commitment order did not meet the definition of a "judgment" as contained in article 42.01 of the Texas Code of Criminal Procedure. See TEX. CODE CRIM. PROC. ANN. art. 42.01, § 1.
We review the trial court's ruling on the admissibility of evidence for an abuse of discretion. Davis v. State, 329 S.W.3d 798, 803 (Tex. Crim. App. 2010). A trial court abuses its discretion when it acts outside the zone of reasonable disagreement. Id.
The indictment in cause number 05-14-00382-CR charged appellant with unlawful possession of a firearm by a felon. To establish unlawful possession of a firearm by a felon as alleged in the indictment, the State was required to show appellant was previously convicted of a felony offense and that he possessed a firearm at a location other than the premises at which he lived. TEX. PENAL CODE ANN. § 46.04(a)(2). An out-of-state conviction can be used to show that a defendant has been previously convicted of a felony. See id. § 46.04(f). An offense under the laws of another state is a felony if, at the time it is committed, the offense (1) is designated by a law of this state as a felony; (2) contains all the elements of an offense designated by a law of this state as a felony; or (3) is punishable by confinement for one year or more in a penitentiary. Id. § 46.04(f)(1)-(3).
To show that a defendant has been convicted of a prior offense, the State must prove: (1) that a prior conviction exists; and (2) that the defendant is linked to the conviction. Flowers v. State, 220 S.W.3d 919, 921 (Tex. Crim. App. 2007). "No specific document or mode of proof is required to prove these two elements." Id. Instead, each case must be judged on its own merits. Id. at 921 n. 8.
While evidence of a certified copy of a final judgment and sentence may be a preferred and convenient means, the State may prove both of these elements in a number of different ways, including (1) the defendant's admission or stipulation, (2) testimony by a person who was present when the person was convicted of the specified crime and can identify the defendant as that person, or (3) documentary proof (such as a judgment) that contains sufficient information to establish both the existence of a prior conviction and the defendant's identity as the person convicted.Id. at 921-22 (footnotes omitted).
The indictment in the unlawful possession of a firearm case alleged that appellant had been convicted of the felony offense of burglary in the Circuit Court, Sixth District, Seventh Division, of Pulaski County, Arkansas, in docket number CR 2006 001882, on August 4, 2006. At trial, to establish the prior felony conviction, the State offered a certified judgment and commitment order from the Circuit Court of Pulaski, Arkansas as State's exhibit 59, and a redacted version of that document as State's exhibit 59-A. Defense counsel objected to the judgment, arguing it failed to meet the requirements of article 42.01 of the Texas Code of Criminal Procedure. His objection was as follows:
Specifically, the purported judgment that is marked as State's Exhibit No. 59 does not state whether or not the case was tried before a jury or whether a jury was waived. That's at 42.01, Section 4.
The purported judgment doesn't distinguish between date of judgment entry or imposition or the date the sentence is to commence. It doesn't set forth under Section 20 of 42.01 the terms of the plea bargain, and it doesn't provide a thumbprint as required by Section 23 of 42.01.
So those are my objections based upon the judgment itself as far as whether or not it meets the definition of a judgment in the Texas Code of Criminal Procedure.
My second objection is that the judgment does not specify whether or not the proper admonitions were given; specifically, whether or not the plea was freely and voluntarily made, whether or not the defendant was admonished concerning his state and Constitutional rights with regard to the required admonishments prior to the entry of the plea.
The State responded that article 42.01 is "not the standard for proving a prior" and that appellant's fingerprints were found in State's exhibit 57, which was a certified ten-print fingerprint card from the State of Arkansas that contained appellant's identifying information and referred to the residential burglary charge. The State offered a redacted version of the fingerprint card that omitted reference to other offenses as State's exhibit 57-A. It also offered an Arkansas penitentiary packet (State's exhibit 58) that included the conviction for residential burglary with the same offense date, date of birth, state I.D. number, social security number, and docket number, as well as a redacted version of that document (State's exhibit 58-A). The trial court concluded that the redacted copies of the documents were admissible during the guilt-innocence phase of the trial and overruled the defense's objections.
During the testimony of Dallas County Sheriff's Deputy Margaret Brown Lewis, the State offered a fingerprint card collected by Deputy Lewis. She compared the fingerprint card to the fingerprints in State's exhibit 57, the Arkansas fingerprint card, and testified that the individuals in the two exhibits were "one and the same." The State offered State's exhibits 57, 57-A, 58, 58-A, 59, and 59-A. The trial court again overruled the defense's objections, admitted the original exhibits for record purposes, admitted the redacted exhibits for all purposes, and allowed the State to publish the redacted exhibits to the jury.
Article 42.01 defines a judgment as "the written declaration of the court signed by the judge and entered of record showing the conviction or acquittal of the defendant," and requires a judgment of conviction to reflect, among other things, whether the case was tried before a jury or that a jury was waived, the date the sentence is imposed, the terms of any plea bargain, and the defendant's thumbprint. TEX. CODE CRIM. PROC. ANN. art. 42.01, § 1(4), (17), (20), and (23). However, the "[f]ailure to adhere to the requirements of article 42.01 does not render a conviction void, but merely voidable. Such failures are subject to reformation on direct appeal but are not subject to collateral attack." Porter v. State, 757 S.W.2d 889, 891 (Tex. App.—Beaumont 1988, no pet.); see also Gaston v. State, 63 S.W.3d 893, 897-98 (Tex. App.—Dallas 2001, no pet.); Sparkman v. State, 55 S.W.3d 625, 629 (Tex. App.—Tyler 2000, no pet.); Alvarez v. State, No. 08-11-00063-CR, 2013 WL 2285862, at *15 n. 8 (Tex. App.—El Paso May 22, 2013, pet. ref'd) (not designated for publication).
In this case, the Arkansas judgment and commitment order, along with the ten-print card and the Arkansas penitentiary packet, established the existence of the prior felony conviction. The State properly linked appellant to that conviction. See Flowers, 220 S.W.3d at 921-22. Deputy Lewis testified that the fingerprints in the fingerprint card she collected from appellant belonged to the same person as the fingerprints in State's exhibit 57. The Arkansas judgment stated that the residential burglary offense was a felony and that appellant was sentenced to seventy-two months imprisonment. See TEX. PENAL CODE ANN. § 46.04(f). Therefore, the trial court did not abuse its discretion by admitting the Arkansas judgment and commitment order. See Davis, 329 S.W.3d at 803. We overrule appellant's second issue.
3. Modification of Judgment
In cause number 05-14-00383-CR, appellant pleaded true to both of the indictment's enhancement paragraphs that alleged prior felony burglary and robbery offenses from the State of Arkansas. The trial court accepted appellant's pleas of true to the enhancement paragraphs. The court's judgment, however, states "N/A" in the space provided for the plea to the first enhancement paragraph and the findings on the first enhancement paragraph. Because the necessary information is available in the record, on our own motion we modify the trial court's judgment in 05-14-00383-CR to show that appellant pleaded true to the first enhancement paragraph and that the trial court found the enhancement paragraph to be true. See TEX. R. APP. P. 43.2(b); Asberry v. State, 813 S.W.2d 526, 529-30 (Tex. App.—Dallas 1991, pet. ref'd) (providing that an appellate court has the authority to modify incorrect judgments sua sponte when the necessary information is available to do so); see also Tyler v. State, 137 S.W.3d 261, 267-68 (Tex. App.—Houston [1st Dist.] 2004, no pet.) (authority to modify judgment is not dependent upon a party's request).
As modified, we affirm the trial court's judgments.
/ Lana Myers/
LANA MYERS
JUSTICE
Do Not Publish
TEX. R. APP. P. 47
140382F.U05
JUDGMENT
On Appeal from the Criminal District Court No. 3, Dallas County, Texas
Trial Court Cause No. F14-00085-J.
Opinion delivered by Justice Myers. Justices Evans and Brown participating.
Based on the Court's opinion of this date, the judgment of the trial court is AFFIRMED.
JUDGMENT
On Appeal from the Criminal District Court No. 3, Dallas County, Texas
Trial Court Cause No. F14-00086-J.
Opinion delivered by Justice Myers. Justices Evans and Brown participating.
Based on the Court's opinion of this date, the judgment of the trial court is MODIFIED as follows:
"Plea to 1st Enhancement Paragraph: True" and "Findings on 1st Enhancement Paragraph: True." As MODIFIED, the judgment is AFFIRMED. We direct the trial court to enter a new judgment that reflects this modification.