AFFIRMED as MODIFIED and Opinion Filed May 6, 2020
S In The
Court of Appeals
Fifth District of Texas at Dallas
No. 05-19-00199-CR
NICKY EUGENE NICKENS, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 194th Judicial District Court
Dallas County, Texas
Trial Court Cause No. F15-00006-M
MEMORANDUM OPINION
Before Justices Schenck, Osborne, and Reichek
Opinion by Justice Reichek
After Nicky Eugene Nickens violated conditions of his deferred adjudication
community supervision, the trial court adjudicated him guilty of family violence
assault and sentenced him to fifteen years in prison. He brings three issues seeking
to correct errors in the judgment. In two cross-issues, the State also requests that we
correct errors in the judgment. For reasons set out below, we sustain the issues and
cross-issues. We modify the trial court’s judgment to correct the errors and affirm
the judgment as modified.
1
In 2015, the grand jury indicted appellant for assault causing bodily injury to
M.B. on July 29, 2014, further alleging that (1) M.B. was a member of his family
and household and was a person with whom he had a dating relationship, (2)
appellant impeded M.B.’s normal breathing and circulation by applying pressure to
her throat and neck and by blocking her nose and mouth, and (3) appellant had
previously been convicted of assault against a person with whom he had a dating
relationship. See Act of May 21, 2009, 81st Leg., R.S., ch. 427, § 1, 2009 Tex. Gen.
Laws 1022–23 (amended 2017 & 2019) (current version at TEX. PENAL CODE ANN.
§ 22.01(b–3). The offense is a second-degree felony. Id. The indictment also
alleged two prior felony convictions as punishment enhancement.
The State subsequently struck the second felony enhancement paragraph and
reached a plea agreement with appellant. Pursuant to that agreement, appellant
pleaded guilty to the offense “exactly as alleged in the charging instrument” and true
to the remaining enhancement paragraph in exchange for four years’ deferred
adjudication community supervision and a $1,000 fine. On March 2, 2015, the trial
court accepted appellant’s pleas, found the evidence substantiated guilt, and assessed
punishment in accordance with the plea agreement.
Fifteen months later, the trial court modified appellant’s community
supervision. On September 28, 2017, the State filed a motion to proceed with an
adjudication of guilt and amended the motion on October 29, 2018, alleging five
–2–
violations of condition (a) and violations of conditions (d), (h), (j), (k), (l), and (n)
of the terms of his community supervision.
Later, during adjudication hearings, the trial court admonished appellant that
since he previously pleaded guilty to the enhancement paragraph and the court found
the paragraph to be true, his range of punishment would be between five and ninety-
nine years or life. See TEX. PENAL CODE ANN. § 12.32 (first-degree felony
punishment); 12.42(b) (provision for enhancing punishment of second-degree felony
to first degree with prior felony conviction). Appellant pleaded true to the violations
without an agreement as to punishment. After an evidentiary hearing, the trial court
found appellant violated (a)-one, (a)-two, (a)-three, (a)-four, (h), (j), (k), (l), and (n),
but that he did not violate (a)-five and (d). The court granted the motion to
adjudicate, found appellant guilty of the charged offense of assault, and sentenced
him to fifteen years in prison.
In three issues, appellant requests this Court to modify the judgment to reflect
(1) the community supervision violations the trial court found not true, (2) there was
no plea bargain on the amended motion to adjudicate guilt, and (3) the correct name
of the offense. In two cross-issues, the State asks that we correct the judgment to
reflect the correct offense of conviction and corresponding statute.
We have the power to modify an incorrect judgment to make the record speak
the truth when we have the necessary information 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.
–3–
State, 813 S.W.2d 526, 529 (Tex. App.—Dallas 1991, pet. ref’d) (en banc).
Corrections to the record are limited to clerical errors and are not appropriate for
errors involving judicial reasoning. Blanton v. State, 369 S.W.3d 894, 897–98 (Tex.
Crim. App. 2012).
The judgment signed by the trial court states: “While on community
supervision, Defendant violated the terms and conditions of community supervision
as set out in the State’s AMENDED Motion to Adjudicate Guilt as follows: See
attached Motion to Adjudicate Guilt.” The attached motion lists all of the
allegations, but allegations (a)-five and (d) have a pen mark through them. The
record establishes that the trial court found allegations (a)-five and (d) not true, and
the State agrees it is unclear whether the pen mark is a memorialization of the trial
court’s not true findings. Given the judgment’s ambiguity, we sustain the first issue
and modify the judgment to specifically reflect the violations that the trial court
found true.
The judgment also includes the following language: “Terms of Plea Bargain:
15 YEARS TDCJ.” The record, however, establishes and the State agrees that
appellant entered an open plea to the motion to adjudicate. We sustain the second
issue and correct the judgment to reflect there was no plea bargain.
Finally, the judgment lists the offense for which appellant was convicted as
“ASSAULT FAMILY VIOLENCE IMPEDE/BREATHE/CIRCUALTION [sic]
ENHANCE” and identifies the statute for the offense as “22.01 Penal Code.”
–4–
Appellant asks that we remove the term “ENHANCE” because it is unclear whether
the term refers to the prior misdemeanor conviction used to classify the offense as a
second-degree felony as opposed to the prior felony conviction used to enhance
punishment to a first-degree felony. The State does not oppose the removal of the
term “ENHANCED,” but asks that we substitute the phrase “PREVIOUS
CONVICTION” or “PREV CONV” as shown in the original indictment and
appellant’s signed judicial confession. Additionally, the State asks us to correct the
statute from 22.01 of the penal code to the more specific 22.01(b–1).
The record shows that appellant was indicted for and pleaded guilty to the
offense of assault family violence with allegations that he impeded the
complainant’s breathing or circulation and had been previously convicted on a
family violence assault. See Act of May 21, 2009, 81st Leg., R.S., ch. 427, § 1, 2009
Tex. Gen. Laws 1022–23 (amended 2017 & 2019) (current version at TEX. PENAL
CODE ANN. § 22.01(b–3). The trial court subsequently found him guilty of the
offense as charged in the indictment. Accordingly, we sustain appellant’s third issue
and the State’s cross issue to correct the name of the offense as suggested by the
State. We also sustain the State’s cross-issue to correct the statute for the offense to
section 22.01(b–1) of the penal code (now found at section 22.01(b–3)).
–5–
We affirm the trial court’s judgment as modified.
/Amanda L. Reichek/
AMANDA L. REICHEK
JUSTICE
Do Not Publish
TEX. R. APP. P. 47.2(b)
190199F.U05
–6–
S
Court of Appeals
Fifth District of Texas at Dallas
JUDGMENT
NICKY EUGENE NICKENS, On Appeal from the 194th Judicial
Appellant District Court, Dallas County, Texas
Trial Court Cause No. F15-00006-M.
No. 05-19-00199-CR V. Opinion delivered by Justice
Reichek; Justices Schenck and
THE STATE OF TEXAS, Appellee Osborne participating.
Based on the Court’s opinion of this date, the judgment of the trial court is
MODIFIED as follows
(1) To state: “While on community supervision, Defendant violated
the terms and conditions of community supervision as set out in the
State’s AMENDED Motion to Adjudicate Guilt as follows: (a)-one,
(a)-two, (a)-three, (a)-four, (h), (j), (k), (l), and (n)”;
(2) To state “None” under the heading “Terms of Plea Bargain”;
(3) To state TEX. PENAL CODE ANN. § 22.01(b–1) (now found at § 22.01(b–3)
under the heading “Statute for Offense”; and
(4) To state Assault Family Violence Impede/Breathe/Circulation/ Previous
Conviction under the heading “Offense for which Defendant Convicted.”
As MODIFIED, the judgment is AFFIRMED.
Judgment entered May 6, 2020
–7–