IN THE
TENTH COURT OF APPEALS
No. 10-12-00050-CR
JAMES JERRIOD BAILEY,
Appellant
v.
THE STATE OF TEXAS,
Appellee
From the 278th District Court
Leon County, Texas
Trial Court No. CM-11-150
MEMORANDUM OPINION
In one issue, appellant, James Jerriod Bailey, challenges his conviction for
aggravated assault. See TEX. PENAL CODE ANN. § 22.02 (West 2011). Specifically,
appellant contends that the trial court’s judgment is void because it adjudicates him
guilty of a more serious offense than alleged in the charging instrument. Because we
find that the trial court’s judgment of guilt and deferred-adjudication order incorrectly
stated that the charged offense constituted a first-degree felony, we modify the
judgments to reflect that appellant was convicted of second-degree aggravated assault
and otherwise affirm.
I. BACKGROUND
Appellant waived indictment and was charged by information with intentionally
or knowingly threatening Carrie Edmund with imminent bodily injury by holding a
knife to her throat and stating that he was going to kill her.1 Pursuant to a plea bargain
with the State, appellant pleaded guilty to the charged offense. The trial court deferred
a finding of guilt and placed appellant on community supervision for three years. The
trial court’s order of deferred adjudication stated that appellant was charged with
aggravated assault with a deadly weapon/family violence; that the underlying offense
corresponded with section 22.02(a)(2)(b)(1) of the Texas Penal Code; and that the
offense was a first-degree felony. See id.
Less than a month after the trial court placed appellant on community
supervision, the State filed a “Motion to Adjudicate or Revoke,” alleging that appellant
committed a second-degree-felony and violated a protective order.2 The trial court
subsequently revoked appellant’s community supervision, found appellant guilty of the
underlying offense, and sentenced him to fifteen years in the Institutional Division of
the Texas Department of Criminal Justice. The trial court also made a deadly-weapon
finding. And as was the case with the order of deferred adjudication, the judgment
1 Edmund executed an affidavit of non-prosecution on April 8, 2011, which appellant argues was
done because Edmund believes that he has mental-health issues that would not be treated in prison.
2 The second-degree felony alleged in the State’s motion refers to another violent incident
transpiring between appellant and Edmund, whereby appellant allegedly punched and tried to choke
Edmund.
Bailey v. State Page 2
adjudicating guilt stated that appellant was charged with aggravated assault with a
deadly weapon/family violence; that the underlying offense corresponded with section
22.02(a)(2)(b)(1) of the Texas Penal Code; and that the offense was a first-degree felony.
See id. Thereafter, the trial court certified appellant’s right to appeal the judgment
adjudicating guilt, and this appeal followed.
II. ANALYSIS
In his sole issue on appeal, appellant asserts that the trial court’s judgment of
guilt is void because it adjudicates him guilty of an offense greater than that charged in
the information. Specifically, appellant argues that he could not have been found guilty
of aggravated assault in the first degree because the information did not allege that
Edmund sustained serious bodily injury. The State concedes that the trial court’s
judgment is incorrect; however, the State argues that the crux of appellant’s complaints
pertain to the validity of the deferred-adjudication order, and as such, they are untimely
under Manuel v. State, 994 S.W.2d 658, 661-62 (Tex. Crim. App. 1999). The State also
contends that the judgment can be reformed to reflect that appellant was found guilty
of aggravated assault in the second degree and that the case does not require reversal
because appellant was sentenced within the range corresponding with second-degree
felonies.
A. Timeliness of Appeal
At the outset of our analysis, we address the State’s contention that appellant’s
complaints are untimely because he did not appeal from the trial court’s deferred-
adjudication order. A defendant placed on deferred adjudication community
Bailey v. State Page 3
supervision may not raise issues relating to the trial court’s community-supervision
order in appeals filed after his community supervision is revoked. Manuel, 994 S.W.2d
at 661-62. Instead, a defendant must raise issues relating to the community-supervision
order in an appeal taken when community supervision is originally imposed. Id.
The Texas Court of Criminal Appeals recognized two exceptions to the foregoing
rule: (1) the “void judgment” exception, and (2) the “habeas corpus” exception. Nix v.
State, 65 S.W.3d 664, 667 (Tex. Crim. App. 2001). The “void judgment” exception
recognizes that there are some rare situations in which a trial court’s judgment is
accorded no respect due to a complete lack of power to render the judgment in
question. Id. A void judgment is a “nullity” and can be attacked at any time. Id. at 667-
68. Thus, a defendant who was placed on deferred adjudication may raise on appeal an
error that would render the original judgment void, even if that appeal comes after the
defendant’s guilt is adjudicated. Id. at 668.
A judgment of conviction for a crime is void only when: (1) the document
purporting to be a charging instrument does not satisfy the constitutional requisites of a
charging instrument, and thus, the trial court has no jurisdiction over the defendant; (2)
the trial court lacks subject-matter jurisdiction over the offense charged; (3) the record
reflects that there is no evidence to support the conviction; or (4) an indigent defendant
is required to face criminal trial proceedings without appointed counsel when the right
to counsel has not been waived. Id. A guilty plea is some evidence to support a
conviction. Id. at 668 n.14.
Bailey v. State Page 4
Here, appellant did not appeal when the community supervision was originally
imposed. Nevertheless, he relies on the “void judgment” exception established in Nix,
which allows for an attack of a void judgment at any time. Id. at 667-68. For the reasons
listed below, we do not believe that the complained-of judgment is void; accordingly,
we could overrule appellant’s complaints on timeliness grounds. See Manuel, 994
S.W.2d at 661-62.
B. The Judgments and Charging Instrument
Section 22.02 of the Texas Penal Code provides the following in relevant part:
(a) A person commits an offense if the person commits assault as defined
in [section] 22.01 and the person:
(1) causes serious bodily injury to another, including the person’s
spouse; or
(2) uses or exhibits a deadly weapon during the commission of the
assault.
(b) An offense under this section is a felony of the second degree, except
that the offense is a felony of the first degree if:
(1) the actor uses a deadly weapon during the commission of the
assault and causes serious bodily injury to a person whose
relationship to or association with the defendant is described by
Section 71.0021(b), 71.003, or 71.005, Family Code . . . .
TEX. PENAL CODE ANN. § 22.02(a)-(b).
On the other hand, the charging instrument in this case alleged that:
Defendant did then and there in Leon County, Texas intentionally or
knowingly threaten Carrie Edmund, a person whose relationship to or
association with the defendant is described by Section 71.0021(b), 71.003,
or 71.005 of the Family Code, with imminent bodily injury by telling
Carrie Edmund he was going to kill her as he held a knife against her
throat, and the defendant did then and there use or exhibit a deadly
Bailey v. State Page 5
weapon, to-wit: a knife, which in the manner of its use or intended use
was capable of causing death or serious bodily injury, during the
commission of said assault . . . .
Nowhere in the charging instrument did the State allege that Edmund sustained serious
bodily injury—a necessary finding to elevate the charged offense from a second-degree
felony to a first-degree felony. See id. § 22.02(b). However, in a guilty-plea
memorandum, appellant indicated that he understood that he was charged with a first-
degree felony. Moreover, appellant stipulated to the evidence contained in the
information.
Based on the foregoing, we agree with the parties that the trial court’s judgment
of guilt and deferred-adjudication order inaccurately stated that appellant was charged
with a first-degree felony. Instead, the judgment and order should have reflected that
appellant was charged and convicted of aggravated assault in the second degree. An
appellate court has authority to reform a judgment to include an affirmative finding to
make the record speak the truth when the matter has been called to its attention by any
source. See TEX. R. APP. P. 43.2(b); Bigley v. State, 865 S.W.2d 26, 27-28 (Tex. Crim. App.
1993); French v. State, 830 S.W.2d 607, 609 (Tex. Crim. App. 1992). Accordingly, we
reform the trial court’s judgment of guilt and deferred-adjudication order to reflect that
appellant was convicted of aggravated assault in the second degree. See TEX. R. APP. P.
43.2(b); Bigley, 865 S.W.2d at 27-28; French, 830 S.W.2d at 609. However, our analysis
does not end here.
Relying on Houston v. State, appellant argues that the underlying judgment of
guilt is void because he was not convicted of the offense charged in the indictment. See
Bailey v. State Page 6
556 S.W.2d 345, 347 (Tex. Crim. App. 1977). But, appellant also recognizes an exception
to the foregoing rule for lesser-included offenses. See id.; see also Teague v. State, 789
S.W.2d 380, 381 (Tex. App.—Houston [1st Dist.] 1990, pet. ref’d) (“[A] trial court is
without jurisdiction to convict a defendant of an offense not charged in the indictment.
The trial court, however, may convict a defendant of an offense not charged in the
indictment, if the offense is a lesser included offense of the one charged.”). Arguably,
the offense for which appellant was actually convicted—second-degree aggravated
assault—is a lesser-included offense of the offense for which the judgment reflected—
first-degree aggravated assault. See TEX. CODE CRIM. PROC. ANN. art. 37.09 (West 2006);
see also Young v. State, No. 05-08-00834-CR, 2009 Tex. App. LEXIS 525, at **3-4 (Tex.
App.—Dallas Jan. 29, 2009, no pet.) (mem. op., not designated for publication)
(modifying a judgment to reflect that defendant was convicted of a first-degree felony
rather than a second-degree felony and concluding that an incorrect admonishment on
the range of punishment was harmless with regard to defendant’s guilty plea because
the imposed sentence is within both the actual punishment range and the range
misstated by defense counsel and the court).3 Nevertheless, it appears to us that the
judgment of guilt and deferred-adjudication order contains a scrivener’s error,
especially considering that the fifteen-year sentence that was imposed falls within the
range accorded second-degree felonies. See TEX. PENAL CODE ANN. § 12.33(a) (West
3 Appellant does not argue on appeal that he would have withdrawn his guilty plea had he
known the correct punishment range. See Young v. State, No. 05-08-00834-CR, 2009 Tex. App. LEXIS 525,
at *3 (Tex. App.—Dallas Jan. 29, 2009, no pet.) (mem. op., not designated for publication). Nothing in the
record shows appellant was unaware of the consequences of his guilty plea and that he was harmed or
misled by the trial court’s admonishments. See id.
Bailey v. State Page 7
2011) (proscribing a punishment range of imprisonment “for any term of not more than
20 years or less than 2 years” for second-degree felonies). We therefore do not believe
that the underlying judgments are void. See Nix, 65 S.W.3d at 668. Appellant’s sole
issue is sustained, in part, and overruled, in part.
III. CONCLUSION
We modify the trial court’s judgment of guilt and deferred-adjudication order to
reflect appellant’s conviction for second-degree aggravated assault and affirm the
judgments as modified.
AL SCOGGINS
Justice
Before Chief Justice Gray,
Justice Davis, and
Justice Scoggins
Affirmed as modified
Opinion delivered and filed July 18, 2013
Do not publish
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