       TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN



                                       NO. 03-19-00220-CR



                               Tyrieck Dontrell Smalls, Appellant

                                                  v.

                                   The State of Texas, Appellee


             FROM THE 426TH DISTRICT COURT OF BELL COUNTY
        NO. 75790, THE HONORABLE FANCY H. JEZEK, JUDGE PRESIDING


                             MEMORANDUM OPINION


               Appellant was convicted of the second-degree felony offense of indecency with a

child by sexual contact, see Tex. Penal Code § 21.11(a)(1), (d), and sentenced to confinement for

eight years in the Texas Department of Criminal Justice.

               Appellant raises two issues on appeal. In response to his first issue in which he

argues that the appeal should be abated to correct the certification of his right to appeal, this

Court abated and remanded the case to the trial court to issue a new certification and, if

necessary, to convene a hearing and to issue findings of fact and conclusions of law. See Smalls

v. State, No. 03-19-00220-CR, 2019 Tex. App. LEXIS 7019, at *2–3 (Tex. App.—Austin

Aug. 13, 2019, order) (mem. op., not designated for publication). On remand, the trial court

signed an amended certification that reflects that this case is a plea bargain case but that the trial

court has given appellant permission to appeal.
               After receiving the supplemental clerk’s record containing the amended

certification of appellant’s right to appeal, this Court reinstated the appeal and advised appellant

that he could file a supplemental brief on or before October 9, 2019. Appellant has not filed a

supplemental brief. Thus, we address the other issue that he raises in his initial brief.

               In his second issue, appellant argues that the judgment should be reformed to

recite or attach the terms of the plea bargain rather than to state “N/A” under the “Terms of Plea

Bargain” in the judgment. The record reflects that appellant was indicted for the first-degree

felony offense of aggravated sexual assault of a child, see Tex. Penal Code § 22.021(a)(1)(B)(ii),

but, pursuant to a written plea agreement, the State agreed to proceed on the lesser-included

second-degree offense of indecency with a child by sexual contact, and appellant agreed to enter

an open plea of nolo contendere to the lesser-included offense.       Thus, the recitation of “N/A”

under the “Terms of Plea Bargain” in the judgment is erroneous. Accordingly, we sustain

appellant’s second issue.

               This Court has authority to modify incorrect judgments when the necessary

information is available 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). Therefore, we modify the trial court’s judgment of conviction to

show that the “Terms of Plea Bargain” is “open plea to lesser-included offense.” As modified,

we affirm the trial court’s judgment of conviction.




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                                                ___________________________________
                                                Melissa Goodwin, Justice

Before Justices Goodwin, Baker, and Kelly

Modified and, As Modified, Affirmed

Filed: November 19, 2019

Do Not Publish




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