New Law on June 30, 2017

The Fifth District Court of Appeals affirmed the decision of the trial court in Mikequiece Devonta Chew v. The State of Texas. This case arose out of a Aggravated Robbery conviction in Dallas County. The cause numbers of the appeal were No. 05-16-00852-CR and No. 05-16-00853-CR.

In cause number 05-16-00852-CR, appellant waived a jury and pleaded guilty to robbery. Pursuant to the plea agreement, the trial court deferred adjudication, placed appellant on seven years’ community supervision, and assessed a $250 fine. The State later moved to adjudicate guilt, alleging appellant violated the terms of his community supervision, including committing a new offense of burglary of a habitation. Appellant pleaded true to the allegations in a hearing on the motion. The trial court granted the State’s motion, adjudicated appellant guilty of robbery,
and assessed punishment at ten years’ imprisonment. In cause number 05-16-00853-CR,
appellant waived a jury and pleaded guilty to burglary of a habitation. After finding appellant guilty, the trial court assessed punishment of ten years’ imprisonment.

In his first issue, appellant contends the judgment adjudicating guilt in the robbery case should be modified because it incorrectly reflects that he pleaded true pursuant to a plea bargain agreement. The State agrees that the judgment should be modified as appellant requests.
The record shows appellant entered an open plea of true to the allegations in the State’s motion to adjudicate guilt. The written judgment, however, states the terms of plea bargain as “10 years TDCJ Fine $-0-.” Thus, we sustain appellant’s issue. We modify the judgment adjudicating guilt to show the terms of plea bargain is “Open.” TEX. R. APP. P. 43.2(b); Bigley v. State, 865 S.W.2d 26, 27–28 (Tex. Crim. App. 1993) (courts of appeals have authority to modify a judgment); Estrada v. State, 334 S.W.3d 57, 63–64 (Tex. App.—Dallas 2009, no pet.).
In his second issue, appellant contends the conviction in the burglary case should be
reversed because the judicial confession admitted as State’s exhibit #1 is missing from the appellate record. The State responds that this issue is moot and moreover, appellant failed to demonstrate he was harmed by the allegedly missing exhibit. We agree with the State.
In the burglary case, the judicial confession signed by appellant, his counsel, the State, and the presiding judge was not contained in the original clerk’s record on file at the time appellant submitted his brief. However, the signed judicial confession is contained in the supplemental clerk’s record filed after appellant submitted his brief. See Pitts v. State, 916 S.W.2d 507, 510 (Tex. Crim. App. 1996) (judicial confession found in transcript but missing from statement of facts as an exhibit could be considered as evidence to support guilty plea). Thus, this issue is moot. We overrule appellant’s second issue

This article is for entertainment and informational purposes only, and does not constitute legal advice or create an client-lawyer relationship among any individuals or entities. All views expressed in this article or at the linked web pages are those of the responsible writer on a particular date, and should not necessarily be attributed to this writer, his law firm, or its clients. NOTHING IN THIS WEBSITE CONSTITUTES LEGAL ADVICE, and the information contained herein should never be used as a substitute for consulting a lawyer. No warranty is made as to the thoroughness or accuracy of any content. Users of this site release and hold harmless all individuals and entities who author articles on this site for any information collected regarding visitors to this site as well as for any other harm resulting from visitors' use of this site. The views expressed on this site are not necessarily those of the author, or of the author's clients.

New Law on June 30, 2017 – The Dallas Lawyer