Polycarp Oigo Onchoke v. The State of Texas Appeal from Criminal District Court No. 6 of Dallas County (memorandum opinion)

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Affirm and Opinion Filed November 6, 2020 In The Court of Appeals Fifth District of Texas at Dallas No. 05-19-01088-CR and No. 05-20-00031-CR POLYCARP OIGO ONCHOKE, Appellant V. THE STATE OF TEXAS, Appellee On Appeal from the Criminal District Court No. 6 Dallas County, Texas Trial Court Cause Nos. F-1900423-X and F-1900422-X MEMORANDUM OPINION Before Justices Molberg, Carlyle, and Browning Opinion by Justice Molberg Polycarp Oigo Onchoke entered guilty pleas to two charges of invasive visual recording, and the court sentenced him to eighteen months’ imprisonment on each charge. See TEX. PENAL CODE § 21.15(c). Onchoke contends his sentence violates the United States and Texas Constitutions because it is “grossly disproportionate” to the crime and does not match the offender. But Mr. Onchoke did not raise these issues in the trial court through a timely request, objection, or motion, and thus did not preserve them for our review. See TEX. R. APP. P. 33.1(a)(1); Rhoades v. State, 934 S.W.2d 113, 120 (Tex. Crim. App. 1996); Bell v. State, 326 S.W.3d 716, 724 (Tex. App.—Dallas 2010, pet. dism’d). In a cross-point, the State asks us to modify the judgment in case number 0520-00031-CR (trial court cause number F-1900422-X) to reflect that Onchoke made an open plea and did not have the benefit of a plea bargain when he pleaded guilty. The record reflects that Onchoke made an open plea in both of the cases before us. We may modify the trial court’s judgment to make the record speak the truth when we have the necessary information to do so. TEX. R. APP. P. 43.2(b); Bigley v. State, 865 S.W.2d 26, 27–28 (Tex. Crim. App. 1993) (en banc) (refusing to limit the authority of the courts of appeals to reform judgments to only those situations involving mistakes of a clerical nature); Asberry v. State, 813 S.W.2d 526, 529–30 (Tex. App.—Dallas 1991, pet. ref’d). We affirm the trial court’s judgment in case number 05-19-01088-CR (trial court cause number F-1900423-X). In case number 05-20-00031-CR (trial court cause number F-1900422-X), we modify the judgment by deleting the phrase “18 months state jail” after “Terms of Plea Bargain” and adding the word “open” instead. 191088f.u05 200031f.u05 Do Not Publish TEX. R. APP. P. 47.2(b) /Ken Molberg/ KEN MOLBERG JUSTICE –2– Court of Appeals Fifth District of Texas at Dallas JUDGMENT POLYCARP OIGO ONCHOKE, Appellant No. 05-19-01088-CR On Appeal from the Criminal District Court No. 6, Dallas County, Texas Trial Court Cause No. F-1900423-X. Opinion delivered by Justice Molberg. Justices Carlyle and Browning participating. V. THE STATE OF TEXAS, Appellee Based on the Court’s opinion of this date, the judgment of the trial court is AFFIRMED. Judgment entered this 6th day of November, 2020. –3– Court of Appeals Fifth District of Texas at Dallas JUDGMENT POLYCARP OIGO ONCHOKE, Appellant No. 05-20-00031-CR On Appeal from the Criminal District Court No. 6, Dallas County, Texas Trial Court Cause No. F-1900422-X. Opinion delivered by Justice Molberg. Justices Carlyle and Browning participating. V. THE STATE OF TEXAS, Appellee Based on the Court’s opinion of this date, the judgment of the trial court is MODIFIED by deleting the phrase “18 months state jail” after “Terms of Plea Bargain” and adding the word “open” instead. As REFORMED, the judgment is AFFIRMED. Judgment entered this 6th day of November, 2020. –4–

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