Justin Obrien Ellis v. The State of Texas Appeal from 3rd District Court of Anderson County (memorandum opinion by chief justice worthen)

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NOS. 12-13-00276-CR 12-13-00277-CR IN THE COURT OF APPEALS TWELFTH COURT OF APPEALS DISTRICT TYLER, TEXAS JUSTIN OBRIEN ELLIS, APPELLANT § APPEAL FROM THE 3RD V. § JUDICIAL DISTRICT COURT THE STATE OF TEXAS, APPELLEE § ANDERSON COUNTY, TEXAS MEMORANDUM OPINION Justin Obrien Ellis appeals his convictions for two counts of burglary of a habitation, two counts of aggravated kidnapping, theft from a person, assault causing bodily injury to a family member with a prior conviction, and assault family violence by occlusion. In his sole issue in each appeal, he contends that the trial court abused its discretion in rendering its judgment nunc pro tunc adjudicating guilt that fails to speak the truth. We modify the trial court s judgment, and as modified, affirm. BACKGROUND In 2010, Appellant was indicted for two counts of burglary of a habitation and two counts of aggravated kidnapping (trial court cause number 30,294; appellate court cause number 12-1300276-CR). The burglary of a habitation offenses were first degree felonies as alleged, 1 and the aggravated kidnapping offenses were second degree felonies as alleged.2 In 2012, he pleaded guilty to all four counts. The trial court placed Appellant on deferred adjudication community supervision for ten years. In 2013, the State filed a motion to adjudicate Appellant s guilt, 1 See TEX. PENAL CODE ANN. § 30.02(a), (d) (West 2011). 2 See id. § 20.04(a), (b), (d) (West 2011). alleging that he violated the terms of his community supervision in several respects. Appellant pleaded not true to the allegations in the State s motion. After a hearing, the trial court granted the State s motion, found Appellant guilty of the offenses, revoked his community supervision, and sentenced him to sixty years of imprisonment on each burglary of a habitation count, and ten years of imprisonment on each of the aggravated kidnapping counts. Separately in 2010, Appellant was indicted in another case for a number of offenses, including (1) theft from a person, a state jail felony as alleged,3 (2) assault causing bodily injury to a family member with a prior conviction,4 and (3) assault family violence by occlusion, a second degree felony as alleged (trial court cause number 30,179; appellate court cause number 12-13-277-CR).5 As in the other case, in 2012, Appellant pleaded guilty to the offenses, and the trial court placed Appellant on deferred adjudication community supervision for ten years. The State filed a motion to adjudicate Appellant s guilt in 2013, alleging the same violations of his community supervision as in the other case. Appellant also pleaded not true to the allegations in the State s motion for this case. After a hearing, the trial court granted the State s motion, found Appellant guilty of the offenses, revoked his community supervision, and sentenced him to two years of confinement for the state jail felony, and ten years of imprisonment for each of the two assault offenses. The trial court ordered that the sentences for all offenses in both cases were to be served concurrently. ERROR IN THE JUDGMENT In his sole issue, Appellant argues that the trial court s written judgment nunc pro tunc in each case incorrectly reflects that Appellant pleaded true to the allegations in the State s motion to proceed with an adjudication of guilt. We have the 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 record reflects that Appellant 3 See id. § 31.03(a) (West Supp. 2014). 4 See id. § 22.01(b)(2)(A) (West. Supp. 2014). 5 See id. § 22.01(b-1). 2 pleaded not true to all of the allegations in the State s motions. Therefore, the trial court s judgment nunc pro tunc in each case should be modified to reflect that Appellant pleaded not true to the allegations contained in the State s motion to proceed with an adjudication of guilt.6 Appellant s sole issue in each case is sustained. DISPOSITION Having sustained Appellant s sole issue, we modify the trial court s judgment nunc pro tunc in each case to reflect that he pleaded not true to the allegations in the State s motions to adjudicate guilt, and as modified, affirm. JAMES T. WORTHEN Chief Justice Opinion delivered August 20, 2014. Panel consisted of Worthen, C.J., Griffith, J., and Hoyle, J. (DO NOT PUBLISH) 6 We note that Appellant does not challenge the sufficiency of the evidence to support the trial court s findings that the allegations in the State s motions are true. 3 COURT OF APPEALS TWELFTH COURT OF APPEALS DISTRICT OF TEXAS JUDGMENT AUGUST 20, 2014 NO. 12-13-00276-CR JUSTIN OBRIEN ELLIS, Appellant V. THE STATE OF TEXAS, Appellee Appeal from the 3rd District Court of Anderson County, Texas (Tr.Ct.No. 30294) 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 nunc pro tunc below be modified to reflect that Appellant pleaded not true to the allegations in the State s motion to adjudicate guilt; 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., Griffith, J., and Hoyle, J. COURT OF APPEALS TWELFTH COURT OF APPEALS DISTRICT OF TEXAS JUDGMENT AUGUST 20, 2014 NO. 12-13-00277-CR JUSTIN OBRIEN ELLIS, Appellant V. THE STATE OF TEXAS, Appellee Appeal from the 3rd District Court of Anderson County, Texas (Tr.Ct.No. 30,179) 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 nunc pro tunc below be modified to reflect that Appellant pleaded not true to the allegations in the State s motion to adjudicate guilt; 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., Griffith, J., and Hoyle, J.

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