                                        In The
                                   Court of Appeals
                          Seventh District of Texas at Amarillo

                                         No. 07-18-00357-CR


                          SHERMAN LAMONT DANIELS, APPELLANT

                                                   V.

                               THE STATE OF TEXAS, APPELLEE

                               On Appeal from the 30th District Court
                                       Wichita County, Texas1
                 Trial Court No. 45,165-A, Honorable Robert P. Brotherton, Presiding

                                          March 27, 2020

                                 MEMORANDUM OPINION
                         Before QUINN, C.J., and PIRTLE and PARKER, JJ.


        Appellant, Sherman Lamont Daniels, appeals the trial court’s judgment revoking

his deferred adjudication community supervision, adjudicating him guilty of the offense of

aggravated kidnapping,2 and sentencing him to five years’ confinement in the Institutional

Division of the Texas Department of Criminal Justice. In two issues, appellant contends



        1 By order of the Texas Supreme Court, this appeal was transferred to this Court from the Second

Court of Appeals. See TEX. GOV’T CODE ANN. § 73.001 (West 2013).

        2   TEX. PENAL CODE. ANN. § 20.04 (West 2019).
that the trial court abused its discretion by failing to conduct a unitary proceeding on the

motion to adjudicate and failing to grant his motion for new trial based on an involuntary

plea. We modify the judgment and affirm.


                                        Background


       In February of 2007, appellant pled guilty to aggravated kidnapping. Pursuant to

a plea bargain, the trial court deferred adjudication of appellant’s guilt and placed him on

seven years’ community supervision.          The trial court ordered several conditions of

community supervision and informed appellant in writing that if he failed to comply with

them, his community supervision could be revoked.


       In January of 2014, the State filed a motion to adjudicate the guilt of appellant. In

the motion, the State alleged that appellant had violated four conditions of his community

supervision.   In March, appellant pled true and the court extended his community

supervision until February 2017.       An agreed order amending terms of community

supervision was filed.


       In January 2017, the State filed its second motion to adjudicate the guilt of

appellant. The State alleged multiple violations of the terms and conditions of appellant’s

community supervision, including that appellant admitted to using alcohol on October 25,

2014, admitted to using marijuana on April 15, 2016, and failed to report seven identified

months. At a hearing on the State’s motion, appellant appeared with counsel and entered

a plea of true to the State’s allegations.


       After the judge accepted appellant’s plea of true, the State rested as to the

adjudication. The trial court accepted appellant’s plea and found appellant guilty of the

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underlying offense of aggravated kidnapping. Appellant’s attorney announced that he

was presenting mitigating evidence, and the hearing proceeded to punishment. Each

party presented punishment evidence. The State offered three prior judgments which

were admitted without objection. Appellant’s mitigation evidence consisted of appellant’s

counselor and appellant’s long-time girlfriend, the victim of the aggravated kidnapping.

At the conclusion of appellant’s mitigation evidence, the trial court took the matter under

advisement.


       On June 5, 2018, the trial court emailed the parties explaining its rationale to

sentence appellant to five years’ confinement and indicating the matter would be

scheduled for imposition of sentence.


       Appellant obtained new counsel and filed a motion to withdraw his plea of true and

a motion for new trial. In his motions, appellant argued that he was unaware of the

consequences of his plea, his attorney failed to request a unitary revocation hearing that

would allow the court to sentence appellant “other than commitment to TDCJ,” his

attorney failed to advise him that “entering a plea of true would result in a revocation of

his probation,” and that appellant “plead [sic] true with the belief that the [c]ourt would

have the option to dismiss the State’s motion.”


       On August 10, the case was called for pronouncement of sentence. The trial court

found appellant guilty of aggravated kidnapping and sentenced him to five years’

confinement. Appellant’s counsel then presented evidence on his motion to withdraw his

plea and motion for new trial. These motions were denied.




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       Appellant timely appealed the resulting judgment.        By his appeal, appellant

contends that the trial court erred in failing to conduct a unitary proceeding on his motion

to proceed, and in failing to grant his motion for new trial.


                                     Law and Analysis


Adjudication Proceeding


       In his first issue, appellant asserts that the trial court erroneously bifurcated the

motion to adjudicate proceeding which “made aggravated prison time inevitable.” An

appellate court’s review of an order adjudicating guilt is limited to a determination of

whether the trial court abused its discretion. TEX. CODE CRIM. PROC. ANN. art. 42A.108(b)

(West 2018); Rickels v. State, 202 S.W.3d 759, 763 (Tex. Crim. App. 2006).


       Appellant’s first issue relies on an email the judge sent to the parties following a

hearing on the motion to proceed with adjudication. The email provides as follows:


        I have considered the evidence and argument of counsel in [appellant’s]
        case.

        I note the following:

           1. The matter before the [c]ourt was a motion to proceed with
              adjudication of guilt.
           2. I was not asked to conduct a unitary proceeding.
           3. Upon the [appellant’s] plea of true to the allegations, I found the
              allegations to be true and found [appellant] guilty of aggravated
              kidnapping on his original plea of guilty.
           4. The hearing proceeded to punishment.
           5. [Appellant’s] punishment evidence was compelling.
           6. Art. 42A.054 [of the Code of Criminal Procedure] prohibits me from
              placing [appellant] on [probated] community supervision.

        Despite [appellant’s] punishment evidence, the minimum sentence that I
        may impose is 5 years[’] confinement in the Texas Department of Criminal
        Justice.

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         According to appellant, the trial court accepted the plea, immediately found the

allegations to be true, and proceeded to punishment—a process that effectively bifurcated

the proceeding. Appellant urges that this process foreclosed the trial court’s ability to

consider his request for discharge from community supervision and made his sentence

to a term of confinement “inevitable.”


         When, as in this case, a defendant enters a plea of true at an adjudication hearing,

“the proceeding becomes a unitary proceeding to determine the remaining issue of

punishment.” Tapia v. State, 462 S.W.3d 29, 31 n.2 (Tex. Crim. App. 2015) (citing Carroll

v. State, 975 S.W.2d 630, 631-32 (Tex. Crim. App. 1998) (en banc)). In a unitary

proceeding, the decision of the trial court “is not fixed until it renders judgment on guilt

and punishment after all the evidence and arguments have been heard.” Barfield v. State,

63 S.W.3d 446, 451 (Tex. Crim. App. 2001) (en banc). Even if the trial court employs

procedures characteristic of bifurcation, the procedure remains a unitary trial “punctuated

by a recess in the middle.” Saldana v. State, 150 S.W.3d 486, 489 (Tex. App.—Austin

2004, no pet.).


         Here, the adjudication proceeding remained unitary. After hearing appellant’s

mitigation evidence and his argument requesting that his community supervision be

discharged, the trial court had discretion to discharge appellant from community

supervision until the court sentenced him to confinement.3 We overrule appellant’s first

issue.




         3 A continuation or modification of deferred adjudication community supervision was not an
available option for appellant because his original community supervision of seven years was extended an
additional three years in 2017. See TEX. CODE CRIM. PROC. ANN. art. 42A.103(a) (West 2018). The trial

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Motion for New Trial


        In his second issue, appellant contends that the trial court erred in denying his

motion for new trial based on an involuntary plea. Appellant contends that his plea of true

was not made knowingly and voluntarily because he believed the trial court had the option

to discharge him from deferred adjudication community supervision. We review a trial

court’s denial of a motion for new trial for abuse of discretion. Burch v. State, 541 S.W.3d

816, 820 (Tex. Crim. App. 2017). Under this standard, we must uphold the ruling if it is

within the zone of reasonable disagreement, and we will reverse only if no reasonable

view of the record could support the ruling. Id.


        At the beginning of the hearing on the motion to adjudicate, appellant was

admonished about the consequences of his plea of true and he affirmed he understood.

The record also shows that appellant understood the range of punishment he was facing.

While appellant hoped he would be discharged from his community supervision, he

clearly understood that the alternative might occur and that he could be revoked and sent

to prison.


        At the hearing on the motion for new trial, appellant’s plea attorney testified that he

explained the options available to appellant “considering that his options were limited.”

Appellant’s options were to plead true or the court could find the allegations to be true

and assess a prison sentence within the full range of punishment, or the court could deem

the violations alleged by the State were not sufficient to merit appellant being adjudicated

and revoked to prison. The fact that appellant was given a prison term as opposed to


court did not have an option to place appellant on probation because the underlying offense is ineligible for
straight probation. See TEX. CODE CRIM. PROC. ANN. art. 42A.054(a)(4) (West Supp. 2019).

                                                     6
being discharged did not render his plea involuntary or unknowing. Tovar-Torres v. State,

860 S.W.2d 176, 178 (Tex. App.—Dallas 1993, no pet.) (per curiam) (“A plea is not

rendered involuntary simply because a defendant received a greater punishment than he

anticipated.”).


       The trial court has broad sentencing discretion after revoking community

supervision and adjudicating guilt; the trial court’s decision to revoke, adjudicate, and

sentence defendant, instead of discharging his community supervision, was not outside

its broad sentencing discretion. Lyle v. State, No. 02-17-00227-CR, 2019 Tex. App.

LEXIS 5939, at *7 (Tex. App.—Fort Worth July 11, 2019, pet. ref’d) (mem. op., not

designated for publication). Finding no abuse of discretion in denying appellant’s motion

for new trial, we overrule issue two.


Reformation of Judgment


       In reviewing the record, it came to this Court’s attention that the trial court’s

judgment contained in the clerk’s record includes a clerical error. The portion of the

judgment detailing the conditions of community supervision that were violated states,

“Term No. 12(b): The defendant failed to pay the supervision fee incurred herein in that

the balance on such fee is delinquent in the amount of $2,700.75.”           However, the

reporter’s record reveals that the State abandoned this alleged violation.


        This Court has the power to modify the judgment of the court below to make the

record speak the truth when we have the necessary information to do so. TEX. R. APP.

P. 43.2(b); Bigley v. State, 865 S.W.2d 26, 27-28 (Tex. Crim. App. 1993) (en banc).

Appellate courts have the power to reform whatever the trial court could have corrected


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by a judgment nunc pro tunc where the evidence necessary to correct the judgment

appears in the record. Asberry v. State, 813 S.W.2d 526, 529 (Tex. App.—Dallas 1991,

pet. ref’d). The power to reform a judgment is “not dependent upon the request of any

party, nor does it turn on the question of whether a party has or has not objected in the

trial court.” Id. at 529-30. Thus, we modify the trial court’s judgment to delete the finding

of a violation based on “Term No. 12(b).”


                                        Conclusion


       Having found no abuse of discretion by the trial court, the judgment is affirmed as

modified.




                                                         Judy C. Parker
                                                            Justice


Do not publish.




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