JEREMY MIKHAEL ANDERSON, Appellant v. THE STATE OF TEXAS, Appellee

AFFIRMED as MODIFIED; Opinion Filed November 10, 2009.
 
 
 
In The
Court of Appeals
Fifth District of Texas at Dallas
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No. 05-08-00864-CR
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JEREMY MIKHAEL ANDERSON, Appellant
V.
THE STATE OF TEXAS, Appellee
.............................................................
On Appeal from the 265th Judicial District Court
Dallas County, Texas
Trial Court Cause No. F-0527448-R
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MEMORANDUM OPINION
Before Justices O'Neill, Francis, and Lang
Opinion By Justice Lang
        Pursuant to a negotiated guilty plea, appellant Jeremy Mikhael Anderson waived a jury and pleaded guilty before the trial court to the offense of aggravated assault with a deadly weapon. The trial court accepted the plea and, in accordance with the parties' plea agreement, deferred adjudication of appellant's guilt and placed him on community supervision for four years. The deferred adjudication order contained findings (1) appellant used or exhibited a deadly weapon during commission of the offense and (2) the offense involved family violence. Following a subsequent motion by the State to proceed with adjudication of guilt, and on appellant's plea of true, the trial court found appellant guilty. Punishment was assessed by the trial court at ten years' confinement. A deadly weapon finding was included in the judgment adjudicating guilt, but no finding regarding family violence was included in that judgment.
        In two issues on appeal, appellant contends (1) the trial court erred by “relying on a pre- mature deadly weapon finding” at the time of adjudication and (2) this Court should delete the family violence finding from the deferred adjudication order. In a cross-point, the State asserts this Court should modify the judgment adjudicating guilt to include a finding of family violence. We decide appellant's two issues against him. In addition, we decide in favor of the State on its cross- point. Because the law to be applied in this case is well-settled, we issue this memorandum opinion. See Tex. R. App. P. 47.2, 47.4. The trial court's judgment is affirmed as modified.
I. BACKGROUND
 
        Appellant was charged by indictment with intentionally, knowingly, and recklessly causing serious bodily injury to the complainant by “KICKING COMPLAINANT WITH [appellant's] FOOT, a deadly weapon.” (emphasis original). In a signed plea agreement filed on February 17, 2006, appellant stated he committed the offense of aggravated assault “exactly as alleged in the charging instrument.” Additionally, in a sworn “Judicial Confession” filed on that same date, appellant confessed to facts identical to those alleged in the indictment, including that he kicked the complainant with his foot, “a deadly weapon.”
        During his original plea proceeding on February 20, 2006, appellant's “Judicial Confession” was admitted into evidence. Appellant stated to the trial court he had read and understood the papers he signed and was pleading guilty voluntarily. Additionally, appellant testified the force he used during the incident at issue was excessive. The judge stated, “I will find that a foot, a deadly weapon, was used in the commission of the offense. I will make an affirmative finding of family violence.” The February 20, 2006 deferred adjudication order contained findings (1) appellant used or exhibited a deadly weapon during the commission of the offense at issue and (2) the offense involved family violence.
        On May 23, 2008, the date of the hearing on the State's motion to proceed to adjudication, the trial judge who had presided over the trial court at the time of appellant's original plea proceeding had been replaced by a different trial judge. Appellant entered a plea of true to the allegations contained in the motion and the trial court granted the State's motion to proceed to adjudication. In addition, the trial judge stated, “I find you guilty beyond a reasonable doubt based on your plea and the evidence entered back on February 20th, 2006.” At the conclusion of the adjudication proceeding, the trial judge stated, “[A]s previously found by the Court, the Court finds that you used or exhibited a deadly weapon in this case, to-wit: a foot.” A deadly weapon finding was included in the judgment adjudicating guilt, but that judgment contained no family violence finding. This appeal timely followed.
II. APPELLANT'S ISSUES
 
 
A. Applicable Law        
 
        A defendant placed on deferred adjudication may raise issues relating to the original plea proceeding only in an appeal taken when deferred adjudication community supervision is first imposed. See Manuel v. State, 994 S.W.2d 658, 661-62 (Tex. Crim. App. 1999). Accordingly, a defendant is obligated to appeal any issue relating to the original plea hearing at the time he is placed on deferred adjudication or risk waiving it. Clark v. State, 997 S.W.2d 365, 368-69 (Tex. App.-Dallas 1999, no pet.); see also Webb v. State, 20 S.W.3d 834, 836 (Tex. App.-Amarillo 2000, no pet.) (issues relating to validity of original guilty plea or order deferring adjudication not reviewable on appeal following adjudication of guilt).
 
B. Application of Law to Facts
 
                                                1. Deadly Weapon Finding
 
        In his first issue, appellant contends the deadly weapon finding in the judgment adjudicating guilt should be set aside because the trial court violated appellant's statutory right to have such a finding made only after consideration of the evidence by the judge who adjudicated guilt. According to appellant, (1) the judge who presided over the trial court at the time of the original plea hearing exceeded his authority by making a “pre-mature deadly weapon finding” and (2) the judge who presided at the May 23, 2008 adjudication hearing “finalized that error” when he failed to reevaluate the sufficiency of the evidence supporting the deadly weapon finding. The State responds (1) any error pertaining to the deadly weapon finding at the original plea hearing has been waived and (2) the trial court properly entered a deadly weapon finding in the judgment adjudicating guilt because appellant admitted to the use of a deadly weapon in his judicial confession.
a. “Pre-mature” Deadly Weapon Finding
 
        Appellant's contention that the judge who presided over the trial court at the time of appellant's original plea hearing exceeded his authority by making a “pre-mature” deadly weapon finding is an issue relating to the original plea hearing. The record shows appellant did not appeal at the time deferred adjudication community supervision was first imposed. Therefore, appellant's claim regarding that issue presents nothing for this Court's review. See Manuel, 994 S.W.2d at 661-62.
b. Deadly Weapon Finding at Adjudication
 
        According to the record, at the conclusion of the May 23, 2008 adjudication hearing, the trial court granted the State's motion to proceed to adjudication and found appellant guilty “based on [appellant's] plea and the evidence entered back on February 20th, 2006.” Further, the trial judge stated, “[A]s previously found by the Court, the Court finds that you used or exhibited a deadly weapon in this case, to-wit: a foot.”
        During appellant's original plea proceeding on February 20, 2006, appellant's “Judicial Confession” was admitted into evidence. Also during that proceeding, appellant stated to the trial court he had read and understood the papers he signed and was pleading guilty voluntarily. At the May 23, 2008 hearing on the State's motion to proceed to adjudication, the trial court took judicial notice of the contents of the trial court's file.
        The record establishes appellant freely and voluntarily confessed to using or exhibiting a deadly weapon during the commission of the offense. See Keller v. State, 125 S.W.3d 600, 605 (Tex. App.-Houston [1st Dist.] 2003, pet. dism'd). “Appellant's judicial confession is sufficient evidence to show that he used a deadly weapon, and the record need not otherwise provide proof.” Id. Accordingly, we conclude the trial court did not err by entering a deadly weapon finding in the judgment adjudicating guilt. Appellant's first issue is decided against him.
2. Family Violence Finding
 
        In his second issue, appellant asserts, “When the trial court adjudicated guilt, it declined to make a finding that [a]ppellant committed family violence, yet the Deferred Adjudication Order indicates that [a]ppellant did commit family violence.” According to appellant, this Court should exercise its power to correct the deferred adjudication order by deleting the family violence finding from that order. However, as discussed above, a defendant placed on deferred adjudication may raise issues relating to the original plea proceeding only in an appeal taken when deferred adjudication community supervision is first imposed. See Manuel, 994 S.W.2d at 661-62. Appellant's issue clearly is one “relating to the original proceeding.” See id. The record shows appellant did not appeal from the imposition of deferred adjudication community supervision. Therefore, we conclude appellant's second issue presents nothing for this Court's review. See id. We decide against appellant on his second issue.
III. THE STATE'S CROSS-POINT
 
        In a single cross-point, the State asserts this Court should modify the judgment adjudicating guilt to include a finding of family violence. The State argues the record reflects appellant pleaded guilty to the offense of aggravated assault with a deadly weapon and admitted the complainant was his wife. Further, the State asserts the trial court “acknowledged” at the adjudication hearing that the complainant was appellant's ex-wife. According to the State, “Once it was proven that this was a case involving family violence, the trial court was required by statute to enter a finding to that effect.” Appellant argues in his reply brief on appeal that the State's argument in support of its cross- point “incorrectly assumes that the trial court determined that the offense involved family violence.”
A. Applicable Law
 
        Article 42.013 of the Texas Code of Criminal Procedure provides in relevant part that in the trial of an offense under title five of the Texas Penal Code, which includes aggravated assault, “if the court determines that the offense involved family violence, . . . the court shall make an affirmative finding of that fact” and enter it in the judgment of the case. Tex. Code Crim. Proc. Ann. art. 42.013 (Vernon 2006); see also Butler v. State, 189 S.W.3d 299, 302 (Tex. Crim. App. 2006). “Thus, the 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 [the Texas Family Code].” Butler, 189 S.W.3d at 302. In section 71.004 of the Texas Family Code, family violence is defined, in relevant part, as follows:
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 or is a threat that reasonably places the member in fear of imminent physical harm, bodily injury, assault or sexual assault, but does not include defensive measures to protect oneself.
 
Tex. Fam. Code Ann. § 71.004 (Vernon 2008). Spouses and former spouses are “family” for the purposes of section 71.004. See id. § 71.003.
B. Application of Law to Facts
 
        The record shows that at the original plea hearing on February 20, 2006, appellant testified the complainant was his wife. At the May 23, 2008 hearing on the State's motion to proceed to adjudication, the trial judge stated to appellant, “I read the offense report in this case and your actions apparently caused your ex-wife to lose her spleen.” The trial judge's reference to the complainant as appellant's “ex-wife” shows a determination by the trial court that a family relationship, as defined in family code section 71.003, existed between appellant and the complainant. See id. Further, the trial judge (1) stated he did not find credible appellant's testimony that appellant was acting in self-defense and (2) found appellant guilty of the offense of aggravated assault regarding the complainant. Such an offense in the context of a family relationship constitutes family violence under section 71.004. See id. § 71.004. Therefore, on this record, we conclude the trial court was statutorily obligated to enter an affirmative finding of family violence in its judgment adjudicating guilt in this case. See Tex. Code Crim. Proc. Ann. art. 42.013; Butler, 189 S.W.3d at 302; cf. Garcia-Hernandez v. State, No. 05-08-00735-CR, 2009 WL 824766, at *4 (Tex. App.-Dallas Mar. 31, 2009, no pet.) (not designated for publication) (trial court's judgment modified to reflect finding of family violence pursuant to article 42.013 where trial court had necessary evidence before it to enter such finding). We decide in favor of the State on its cross-point.
        This Court has the power to modify an incorrect 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, 27-28 (Tex. Crim. App. 1993); Asberry v. State, 813 S.W.2d 526, 529-30 (Tex. App.-Dallas 1991, pet. ref'd). Here, as discussed above, this Court has the necessary information to correct the judgment. Accordingly, we modify the trial court's judgment adjudicating guilt to include an affirmative finding of family violence.
IV. CONCLUSION
 
        We conclude the trial court did not err by including a deadly weapon finding in the judgment adjudicating guilt because appellant's “Judicial Confession” is sufficient evidence to support such finding. Further, we conclude appellant's claims relating to his original plea proceeding present nothing for this Court's review. Appellant's two issues are decided against him. In addition, we conclude the trial court erred by not entering an affirmative finding of family violence in its judgment adjudicating guilt in this case. The State's cross-point is decided in its favor.
        We modify the trial court's judgment adjudicating guilt to include an affirmative finding of family violence. As modified, the trial court's judgment is affirmed.
 
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                                                  DOUGLAS S. LANG
                                                  JUSTICE
 
Do Not Publish
Tex. R. App. P. 47.2(b)
080864F.U05