MODIFY and AFFIRM; and Opinion Filed June 3, 2015.




                                         S    In The
                                Court of Appeals
                         Fifth District of Texas at Dallas
                                      No. 05-14-00195-CR

                         VINCENT BERNARD JENKINS, Appellant
                                        V.
                            THE STATE OF TEXAS, Appellee

                      On Appeal from the 292nd Judicial District Court
                                   Dallas County, Texas
                           Trial Court Cause No. F-1153064-V

                             MEMORANDUM OPINION
                       Before Justices Francis, Lang-Miers, and Whitehill
                                Opinion by Justice Lang-Miers
       Appellant Vincent Bernard Jenkins appeals from a judgment revoking his community

supervision and sentencing him to ten years in prison for the offense of theft of property with a

value of at least $1,500 but less than $20,000, a state jail felony with punishment enhanced to

that of a third degree felony based on appellant’s two prior convictions for other state jail

felonies. In three issues on appeal appellant argues that (1) his plea of true to the State’s motion

to revoke was involuntary, (2) his sentence is illegal, and (3) his due-process rights were violated

because the trial court failed to consider the full range of punishment. In a cross-point the State

calls our attention to errors in the judgment adjudicating appellant’s guilt and the judgment

revoking his community supervision. We modify the judgment revoking appellant’s community

supervision to correct clerical errors and affirm the judgment as modified.
                                          BACKGROUND

       After stealing a Chevy Tahoe and stripping it for parts, appellant was charged with theft

of property with a value of at least $1,500 but less than $20,000. In July 2011 he entered an

open plea of guilty to the charge and true to two enhancement paragraphs alleging two prior state

jail felony convictions for burglary of a building. The trial court sentenced appellant to ten years

in prison, but suspended the sentence and placed appellant on community supervision for a

period of ten years. In September 2013 the State filed a motion to revoke alleging that appellant

violated a number of conditions of his community supervision. After appellant signed a judicial

confession and pleaded true to the allegations in the State’s motion, the trial court revoked

appellant’s probation and sentenced him to ten years in prison.

                                     STATE’S CROSS-POINT

       We address the State’s cross-point first because it provides context for appellant’s issues

on appeal. In its cross-point the State argues that both judgments need to be reformed to correct

clerical errors. With respect to the July 2011 judgment of conviction, the State notes that it

states, “Terms of Plea Bargain: 10 YEARS TDC/10 YEARS PROBATED.”                        The record

demonstrates, however, that appellant did not enter into a plea bargain agreement with the State,

and instead entered an open plea of guilty to the theft charge. The State also notes that the same

judgment states that there were no pleas or findings with respect to the first and second

enhancement paragraphs alleging two prior state jail felony convictions for burglary of a

building.   But the record demonstrates that appellant pleaded true to both enhancement

paragraphs, and the trial court found both enhancement paragraphs to be true. We have noted the

errors identified by the State, but because it is not the operative judgment in this appeal, we

decline the State’s request to reform the judgment of conviction.




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       With respect to the operative judgment in this appeal—the judgment revoking appellant’s

community supervision—the State notes that it includes a special finding stating that appellant

pleaded true to the second enhancement paragraph, and the trial court found the second

enhancement paragraph to be true.       The record demonstrates, however, that appellant also

pleaded true to the first enhancement paragraph, and the trial court also found the first

enhancement paragraph to be true. This Court has 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. State,

813 S.W.2d 526, 529–30 (Tex. App.—Dallas 1991, pet. ref’d). Having compared the judgment

to the record, we grant the State’s request to modify it. We modify the judgment revoking

community supervision by changing the notation under “Furthermore, the following special

findings or orders apply:” from “PLED TRUE TO PARAGRAPH 2ND; PARAGRAPH

FOUND TRUE 2ND” to “PLED TRUE TO 1ST AND 2ND ENHANCEMENT

PARAGRAPHS; 1ST AND 2ND ENHANCEMENT PARAGRAPHS FOUND TRUE.”

                                   APPELLANT’S FIRST ISSUE

       In his first issue appellant argues that his plea to the State’s motion to revoke was not

voluntary. A defendant’s plea of true to the violations of the conditions of his community

supervision must be voluntary. Shephard v. State, No. 05-13-00291-CR, 2014 WL 2151975, at

*3 (Tex. App.—Dallas May 20, 2014, pet. ref’d) (mem. op., not designated for publication)

(citing LeBlanc v. State, 768 S.W.2d 881, 882 (Tex. App.—Beaumont 1989, no pet.)). The

voluntariness of a plea is determined from the totality of the circumstances viewed in light of the

entire record. Ducker v. State, 45 S.W.3d 791, 796 (Tex. App.—Dallas 2001, no pet.).




                                               –3–
       Appellant’s first issue arises from the following exchange with the trial court, which

occurred towards the beginning of the hearing on the State’s motion to revoke appellant’s

community supervision:

       THE COURT:             In [this case] you appeared before me on July 1st of 2011.
                              You pled true to the enhancement paragraphs. You also
                              pled guilty and you agreed to a plea bargain agreement at
                              confinement in the penitentiary for a period of ten years,
                              probated for ten years. Do you remember that happening?

       [APPELLANT]:           Yeah, I guess, yes, sir.

       THE COURT:             You’ve been back in that holdover all morning. Are you
                              with me today? You understand what is going on today?

       [APPELLANT]:           Yes.

       THE COURT:             The State has filed a motion to revoke that probation. Do
                              you want to have that motion read today, or do you give up
                              that right?

       [APPELLANT]:           I guess have it read, so I can hear what’s going on at this
                              point.

       THE COURT:             He’s acting like he’s confused about what’s happening.

       [APPELLANT]:           About reading that. You said do I want it read, that’s what I
                              was saying.

       THE COURT:             Do you want read the allegations about the way the State is
                              claiming you violated probation?

       [APPELLANT]:           No, that’s fine.

       THE COURT:             How do you plead, true or not true?

       [APPELLANT]:           True.

       THE COURT:             I’ll accept your plea of true.

Appellant argues that the trial court’s comment about appellant acting confused demonstrates

that appellant did not understand the revocation proceeding. Appellant also notes that in the

exchange quoted above, the trial court told appellant that he initially entered into a plea bargain

agreement for the ten-year sentence, when, in fact, the record demonstrates that appellant entered

                                                 –4–
an open plea of guilty and did not enter into a plea bargain agreement. Appellant argues that the

trial court’s misstatement “left [a]ppellant with the impression that he had agreed to a ten-year

sentence and had no choice but to plead true to the State’s motion to revoke.” Appellant also

argues that the trial court (1) failed to confirm that appellant’s plea was an expression of his own

free will, and (2) did not indicate on the record that appellant entered his plea knowingly and

voluntarily.

       Texas Rule of Appellate Procedure 33.1(a) provides in part that, as a prerequisite to

presenting a complaint for appellate review, a timely request, objection, or motion must be made

and ruled upon by the trial court. TEX. R. APP. P. 33.1(a). This requirement ensures that trial

courts are provided an opportunity to correct their own mistakes at the most convenient and

appropriate time—when the mistakes are alleged to have been made. See Vidaurri v. State, 49

S.W.3d 880, 886 (Tex. Crim. App. 2001); Aguilar v. State, 26 S.W.3d 901, 905–06 (Tex. Crim.

App. 2000). In Mendez v. State, 138 S.W.3d 334, 338–39 (Tex. Crim. App. 2004), the Texas

Court of Criminal Appeals explained that challenges to the voluntariness of a plea must be raised

before the trial court in order to preserve the complaint for review on appeal. In this case

appellant did not complain to the trial court that his plea was involuntary either at the time of the

revocation hearing or in a motion for new trial. As a result, appellant has not preserved error and

we resolve his first issue against him. See, e.g., Lively v. State, 338 S.W.3d 140, 143 (Tex.

App.—Texarkana 2011, no pet.) (appellant failed to preserve error concerning voluntariness of

his pleas of true to allegations in State’s motion to revoke because he did not raise complaint

about voluntariness during revocation hearing or in motion for new trial); Adair v. State, No. 13-

11-00606-CR, 2012 WL 3525649, at *3 (Tex. App.—Corpus Christi Aug. 16, 2012, no pet.)

(mem. op., not designated for publication) (same).




                                                –5–
                                  APPELLANT’S SECOND ISSUE

       In his second issue appellant argues that his sentence is illegal because it is outside the

statutory range. A sentence outside the statutory range is an illegal sentence, and an illegal

sentence is void. See Mizell v. State, 119 S.W.3d 804, 806 (Tex. Crim. App. 2003).

       Appellant’s complaint arises from the clerical error in the judgment revoking his

community supervision. More specifically, appellant argues that because the judgment revoking

his community supervision “affirmatively reflects that the judgment found only one

enhancement paragraph true,” the punishment range for appellant’s state jail felony offense was

not enhanced and the applicable range of punishment was 180 days to two years in prison. See

TEX. PENAL CODE ANN. § 12.35(a) (West Supp. 2014). As we have already explained, however,

the judgment contains a clerical error that we have now corrected. As corrected, the judgment

reflects that appellant pleaded true to two prior state jail felony convictions. Under these

circumstances the punishment range for the offense at issue may be enhanced to that of a third

degree felony. See TEX. PENAL CODE ANN. § 12.425(a). The applicable punishment range for a

third degree felony is two to ten years in prison. TEX. PENAL CODE ANN. § 12.34 (West 2011).

As a result, appellant’s ten-year sentence is within the statutory range and is not illegal. We

resolve appellant’s second issue against him.

                                   APPELLANT’S THIRD ISSUE

       In his third issue appellant complains that the trial court failed to consider the full range

of punishment. A trial court’s refusal to consider the entire range of punishment constitutes a

denial of due process. Grado v. State, 445 S.W.3d 736, 739 (Tex. Crim. App. 2014). Because

the right to be punished after consideration of the full range of punishment “is a substantive right

necessary to effectuate the proper functioning of our criminal justice system,” the Texas Court of

Criminal Appeals recently classified it as a waivable-only right (i.e. Marin category two). Id. at

                                                –6–
741–43; see also Marin v. State, 851 S.W.2d 275, 279–80 (Tex. Crim. App. 1993) (defining

“waivable only” or “category two” rights as those that “the judge has an independent duty to

implement” absent effective and express waiver by defendant), overruled on other grounds by

Cain v. State, 947 S.W.2d 262 (Tex. Crim. App. 1997). As a result, a complaint that the trial

court failed to consider the full range of punishment may be raised for the first time on appeal.

Grado, 445 S.W.3d at 741–43.

       Appellant’s complaint arises from the following statements made by the trial court at the

end of the revocation hearing:

       In [this] case, you agreed at the time of the original plea to a ten year sentence
       probated for ten years. I do not believe you have done anything on that probation
       that justifies reducing the length of that sentence. I’ll enter an order revoking
       your probation.

Appellant argues that this statement shows that the trial court mistakenly thought it was bound

by a plea bargain agreement and was unaware that it could impose a lesser sentence. We

disagree. Although the trial court was mistaken about appellant having previously entered into a

plea bargain agreement with the State, the trial court’s statement quoted above does not show

that the trial court refused to consider the full range of punishment. To the contrary, the trial

court explained that it found no reason to reduce the length of sentence appellant received when

his guilt was adjudicated—which shows that the trial court considered the full range of

punishment and knew it was not bound by the terms of a plea bargain agreement. We resolve

appellant’s third issue against him.




                                              –7–
                                         CONCLUSION

       We modify the judgment revoking appellant’s community supervision              to reflect

appellant’s pleas and the trial court’s findings as to the two enhancement paragraphs. We affirm

the judgment as modified.




                                                    /Elizabeth Lang-Miers/
                                                    ELIZABETH LANG-MIERS
                                                    JUSTICE


Do Not Publish
TEX. R. APP. P. 47.2(b)

140195F.U05




                                              –8–
                                        S
                               Court of Appeals
                        Fifth District of Texas at Dallas
                                      JUDGMENT

VINCENT BERNARD JENKINS,                             On Appeal from the 292nd Judicial District
Appellant                                            Court, Dallas County, Texas
                                                     Trial Court Cause No. F-1153064-V.
No. 05-14-00195-CR         V.                        Opinion delivered by Justice Lang-Miers.
                                                     Justices Francis and Whitehill participating.
THE STATE OF TEXAS, Appellee

        Based on the Court’s opinion of this date, the judgment revoking community supervision
is MODIFIED as follows: the notation under “Furthermore, the following special findings or
orders apply” is changed from “PLED TRUE TO PARAGRAPH 2ND; PARAGRAPH FOUND
TRUE 2ND” to “PLED TRUE TO 1ST AND 2ND ENHANCEMENT PARAGRAPHS; 1ST
AND 2ND ENHANCEMENT PARAGRAPHS FOUND TRUE.” As MODIFIED, the
judgment is AFFIRMED.


Judgment entered this 3rd day of June, 2015.




                                               –9–
