Van Flowers v. State

• Decision Date: 27 May 2021
• Docket Number: NOS. 01-18-01059-CR & 01-18-01062-CR,S. 01-18-01059-CR & 01-18-01062-CR
• Citation: 629 S.W.3d 707
• Parties: Damion VAN FLOWERS, Appellant v. The STATE of Texas, Appellee
• Court: Texas Court of Appeals

629 S.W.3d 707

Damion VAN FLOWERS, Appellant

v.The STATE of Texas, Appellee

NOS. 01-18-01059-CR & 01-18-01062-CR

Court of Appeals of Texas, Houston (1st Dist.).

Opinion issued May 27, 2021

Baldwin D. Chin, Houston, Brian Marcus Middleton, Austin, John J. Harrity III, Richmond, for Appellee.

Julia Bella, for Appellant.

Panel consists of Chief Justice Radack and Justices Goodman and Farris.

OPINION

Gordon Goodman, Justice

Damion Van Flowers appeals from two judgments of conviction, one for aggravated robbery and one for possession of a controlled substance in a drug-free zone, contending that the trial court erred in assessing his punishment for the latter offense by failing to apply the correct punishment range. Van Flowers requests that we modify the trial court's judgment of conviction for the drug offense to impose the minimum punishment permissible under the correct range of punishment.

While we agree that the trial court erred in assessing punishment for the drug offense, we decline to modify the trial court's corresponding judgment of conviction. Instead, we affirm both judgments of conviction but reverse solely as to punishment with respect to the drug offense and remand that cause to the trial court to assess punishment under the correct punishment range for the offense.

BACKGROUND

A grand jury issued two indictments against Van Flowers. The first accused Van Flowers of aggravated robbery. See TEX. PENAL CODE § 29.03(a)(2). The second accused him of felony possession of a controlled substance, methamphetamine, weighing 4 grams or more but less than 200 grams in a drug-free zone. See TEX. HEALTH & SAFETY CODE §§ 481.115(d), 481.134(c). Both indictments included an enhancement paragraph based on his prior conviction for the third-degree felony offense of escape. See PENAL §§ 12.42(b)–(c), 38.06(a), (c).

Van Flowers pleaded guilty to both crimes and true to the enhancement allegations. During the punishment hearing, Van Flowers testified that he was under the influence of Xanax, cocaine, and PCP when he committed the offenses. Though he pleaded guilty, Van Flowers stated that he did not intend to rob his victim, claiming that his victim thought he was being robbed when Van Flowers entered his garage brandishing a knife. Van Flowers was apprehended by peace officers at a convenience store shortly afterward. He resisted arrest, and one of the officers subdued him with a taser. When the officers took Van Flowers into custody, he had drugs in his possession.

The prosecutor, defense, and trial court agreed that the statutory minimum punishment for each offense was 15 years' imprisonment. The trial court assessed punishment at 15 years' imprisonment for each offense. It also ordered that the two sentences run consecutively, as required by statute. See HEALTH & SAFETY § 481.134(h) (punishments increased because drug offense occurs in drug-free zone "may not run concurrently with punishment for a conviction under any other criminal statute"). When Van Flowers expressed dismay at the severity of the punishment, the trial court explained that it had assessed the minimum punishment allowed by law.

DISCUSSION

Van Flowers contends that the trial court erred in calculating the statutory minimum punishment for the drug offense. He maintains that the correct minimum punishment for this offense is 10 years' imprisonment. He further contends that the record shows the trial court intended to sentence him to the statutory minimum for both the aggravated robbery and the drug offense. Accordingly, Van Flowers asks that we reform the trial court's judgment to impose 10 years' imprisonment for the drug offense. The State agrees that we should modify the judgment as Van Flowers urges.

Applicable Law

Confession of Error

We give due consideration to the State's confession of error, but its confession is not dispositive. Saldano v. State , 70 S.W.3d 873, 884 (Tex. Crim. App. 2002). We must independently assess the merits of an appellant's claim of error. Id. ; accord Estrada v. State , 313 S.W.3d 274, 286 (Tex. Crim. App. 2010) (proper administration of criminal law cannot be left to stipulation of parties); see, e.g., Neale v. State , 525 S.W.3d 800, 810–13 (Tex. App.—Houston [14th Dist.] 2017, no pet.) (independently analyzing issue and affirming despite State's confession of error).

Modification of Judgments

The rules of appellate procedure authorize us to "modify the trial court's judgment and affirm it as modified." TEX. R. APP. P. 43.2(b). Under the rules, an appellate court may "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." French v. State , 830 S.W.2d 607, 609 (Tex. Crim. App. 1992). We may likewise delete such a finding to accurately reflect the record. Malbrough v. State , 612 S.W.3d 537, 563–64 (Tex. App.—Houston [1st Dist.] 2020, pet. ref'd).

Consistent with our authority to modify a judgment to include or delete an affirmative finding, we have modified judgments to correct errors with respect to:

• court costs and fees;

• deadly-weapon findings;

• the defendant's name;

• the offense of conviction;

• appeal waivers;

• the defendant's plea to enhancement allegations;

• enhancement-allegation findings;

• family-violence findings;

• period of community supervision;

• fines;

• the imposition of court-appointed counsel's fees;

• credit for time served;

• the degree of felony of the offense of conviction;

• conflicts between the trial court's oral pronouncement of punishment from the bench and the written judgment;

• the defendant's plea to the indicted offense;

• the identity of the person to whom the defendant must pay restitution; and

• conflicts between the punishment assessed by the jury and the punishment stated in the trial court's judgment.

See, e.g., Pacas v. State , 612 S.W.3d 588, 596–97 (Tex. App.—Houston [1st Dist.] 2020, pet. ref'd) (court costs); Malbrough , 612 S.W.3d at 563–64 (deadly-weapon finding); Tiscareno v. State , 608 S.W.3d 434, 443 (Tex. App.—Houston [1st Dist.] 2020, pet. ref'd) (defendant's name); Cazarez v. State , 606 S.W.3d 549, 557–58 (Tex. App.—Houston [1st Dist.] 2020, no pet.) (offense); Edwards v. State , 497 S.W.3d 147, 164 (Tex. App.—Houston [1st Dist.] 2016, pet. ref'd) (plea to enhancement allegations); Morris v. State , 496 S.W.3d 833, 835–36 (Tex. App.—Houston [1st Dist.] 2016, pet. ref'd) (appeal waiver); Dromgoole v. State , 470 S.W.3d 204, 226–27 (Tex. App.—Houston [1st Dist.] 2015, pet. ref'd) (trial court's enhancement finding); Montano v. State , 433 S.W.3d 694, 697–98 (Tex. App.—Houston [1st Dist.] 2014, no pet.) (court costs and fees); Jones v. State , 428 S.W.3d 163, 171–72 (Tex. App.—Houston [1st Dist.] 2014, no pet.) (court-appointed counsel's fees); Conner v. State , 418 S.W.3d 742, 744–45 (Tex. App.—Houston [1st Dist.] 2013, no pet.) (fine and credit for time served); Agbogwe v. State , 414 S.W.3d 820, 839–41 (Tex. App.—Houston [1st Dist.] 2013, no pet.) (family-violence finding, period of community supervision, and amount of fine); Castillo v. State , 404 S.W.3d 557, 564–65 (Tex. App.—Houston [1st Dist.] 2010, pet. ref'd) (degree of felony, plea to enhancement allegations, and trial court's enhancement findings); Donovan v. State , 232 S.W.3d 192, 197 (Tex. App.—Houston [1st Dist.] 2007, no pet.) (conflict between trial court's oral pronouncement of punishment and written judgment); Campbell v. State , 227 S.W.3d 326, 332 (Tex. App.—Houston [1st Dist.] 2007, no pet.) (defendant's plea to offense); Tyler v. State , 137 S.W.3d 261, 267–68 (Tex. App.—Houston [1st Dist.] 2004, no pet.) (person owed restitution); Nolan v. State , 39 S.W.3d 697, 698–99 (Tex. App.—Houston [1st Dist.] 2001, no pet.) (offense, defendant's name, and conflict between punishment assessed by jury and punishment stated in trial court's judgment); see also Deleon v. State , Nos. 01-15-00927-28-CR, 2016 WL 6599622, at *3 (Tex. App.—Houston [1st Dist.] Nov. 8, 2016, no pet.) (mem. op., not designated for publication) (defendant's plea to motions to adjudicate); Durr v. State , No. 01-13-00256-CR, 2015 WL 1245478, at *2 (Tex. App.—Houston [1st Dist.] Mar. 17, 2015, no pet.) (per curiam) (mem. op., not designated for publication) (date of defendant's offense); Garrison v. State , Nos. 01-12-01144-46-CR, 2014 WL 2932854, at *1 (Tex. App.—Houston [1st Dist.] June 26, 2014, pet. ref'd) (per curiam) (mem. op., not designated for publication) (date punishment assessed and deadly-weapon finding); Haynes v. State , No. 01-09-00380-CR, 2010 WL 5250881, at *7 (Tex. App.—Houston [1st Dist.] Dec. 9, 2010, pet. ref'd) (mem. op., not designated for publication) (finding as to whether defendant represented self or was represented by counsel).

What these modifications have in common is that the record indisputably reflected an error readily correctable by reference to information in the record. Our authority to modify a trial court's judgment is not restricted to the correction of clerical errors. Bigley v. State , 865 S.W.2d 26, 27 (Tex. Crim. App. 1993) ; Morris , 496 S.W.3d at 836. But the record must supply us with the information necessary to show both that a modification is warranted and the particular modification that is warranted. See Tiscareno , 608 S.W.3d at 443 (appellate court can modify judgment when it has information necessary to do so). If the record does not do both, we cannot modify the trial court's judgment. See, e.g., Broussard v. State , 226 S.W.3d 619, 621–22 (Tex. App.—Houston [1st Dist.] 2007, no pet.) (court could not modify judgment to credit time served when record lacked necessary information).

Analysis

Absent an express waiver, a criminal defendant has the right to have his punishment assessed in light of the correct range of punishment. Grado v. State , 445 S.W.3d 736, 741–43 (Tex. Crim. App. 2014). A trial court errs if it fails to do so, and a defendant can raise this error for the first time on appeal. Id.

The...