Modify, and Affirmed as Modified; Opinion Filed February 27, 2020




                                              In The
                                Court of Appeals
                         Fifth District of Texas at Dallas
                                       No. 05-18-01437-CR
                                       No. 05-18-01438-CR
                                       No. 05-18-01439-CR
                                       No. 05-18-01440-CR
                                       No. 05-18-01441-CR
                                       No. 05-18-01442-CR
                                       No. 05-18-01443-CR
                                       No. 05-18-01444-CR

                            DANIEL BARRY STEFFEN, Appellant
                                         V.
                             THE STATE OF TEXAS, Appellee

                    On Appeal from the 199th Judicial District Court
                                 Collin County, Texas
Trial Court Cause Nos. 199-83863-2017; 199-83864-2017; 199-83865-2017; 199-83866-2017;
            199-83867-2017; 199-83868-2017; 199-83869-2017; 199-84131-2017

                              MEMORANDUM OPINION
                       Before Justices Partida-Kipness, Nowell, and Evans
                                    Opinion by Justice Nowell
       Daniel Barry Steffen pleaded guilty to seven sex-based offenses and to criminal solicitation

of capital murder. The trial court sentenced him to terms of incarceration for each offense. In

three issues, appellant argues the conviction for criminal solicitation violates due process because

he is innocent of the offense; alternatively, the trial court’s sentence violates due process because

it exceeds the maximum punishment for the offense charged by the indictment; and two judgments
should be modified to reflect the sentences pronounced. The State agrees two of the judgments

should be modified. We modify the judgments in trial court cause numbers 199-83866-2017 and

199-83868-2017 to reflect the sentences orally pronounced in each case and affirm as modified.

We also modify the judgment in trial court cause number 199-84131-2017 to change the entry

titled “Offense for which Defendant Convicted” from “SOLICIATION TO COMMIT CAPITAL

MURDER FOR RETALIATION JUDGE/JUSTICE” to “SOLICIATION TO COMMIT

CAPITAL MURDER FOR RETALIATION,” and affirm as modified. We affirm the judgments

in the remaining five cause numbers.

       A. Criminal Solicitation

       In his first issue, appellant argues the conviction for criminal solicitation violates due

process because he is innocent of the offense. The State charged appellant with “Solicitation to

Commit Capital Murder for Retaliation Judge/Justice First Degree Felony 19.03(a)(9).” The body

of the indictment alleges that on or about November 17, 2017, appellant did:

       then and there, with intent that capital murder, a capital felony be committed,
       request, command, and attempt to induce Lee Harrison to engage in specific
       conduct, namely to cause the death of an individual, namely Crystal Levonius, in
       the course of committing retaliation against Crystal Levonius, that under the
       circumstances surrounding the conduct of Lee Harrison, as the defendant believed
       them to be, would have made Lee Harrison a party to the commission of capital
       murder.

Appellant entered an open plea of guilty to the trial court. The plea agreement signed by appellant

stated he was pleading guilty “to the offense of Solicitation to Commit CAPITAL MURDER FOR

RETALIATION JUDGE/JUSTICE as charged in . . . the charging instrument.” The trial court’s

written admonitions stated the range of punishment for the offense was: “1st Degree Felony: Life

or any term not more than 99 years or less than 5 years in the Institutional Division of the Texas

Department of Criminal Justice and an optional fine not to exceed $10,000.” Appellant also signed

a document titled “Defendant’s Waiver of Rights and Judicial Confession,” which stated in part

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that appellant “[w]aive[d] any and all defects, errors or irregularities, whether of form or substance,

in the charging instrument.” Appellant also acknowledged in writing that his attorney explained

to him and he read and understood the plea agreement, the trial court’s admonitions, and the

defendant’s waiver of rights and judicial confession.

       Several witnesses testified during the plea hearing. The testimony shows that while

appellant was incarcerated and awaiting trial on the sex-related offenses that are part of this appeal,

the police learned he was soliciting Lee Harrison to kill Crystal Levonius, the prosecutor handling

his cases. This testimony forms the basis of appellant’s first issue. He argues that while the

indictment charged him with “Solicitation to Commit Capital Murder for Retaliation Judge/Justice

First Degree Felony 19.03(a)(9),” the evidence showed he solicited the murder of a prosecutor.

Therefore, he is innocent of the charged offense.

       Appellant’s complaint relates to a defect in the indictment. However, appellant did not

object to the indictment in the trial court. If a defendant does not object to a defect, error, or

irregularity of form or substance in an indictment before the date on which the trial on the merits

commences, the defendant forfeits the right to object to the defect, error, or irregularity and may

not raise the objection on appeal or in any other post-conviction proceeding. TEX. CODE CRIM.

PRO. ANN. art. 1.14(b). Additionally, a “defendant in a criminal prosecution for any offense may

waive any rights secured him by law.” Id. art. 1.14(a). Appellant made such a waiver when he

executed the “Defendant’s Waiver of Rights and Judicial Confession,” which states in part that he

“[w]aive[d] any and all defects, errors or irregularities, whether of form or substance, in the

charging instrument.” Because appellant did not object to this defect in the trial court and

expressly waived any defects, errors, or irregularities, of form or substance, in the indictment, we

conclude he waived his complaint and cannot now raise it on appeal. See Teal v. State, 230 S.W.3d

172, 179–80 (Tex. Crim. App. 2007); see also Layton v. State, No. 05-17-01120-CR, 2018 WL

                                                 –3–
3198585, at *1 (Tex. App.—Dallas June 29, 2018, no pet.) (mem. op., not designated for

publication).

       In his second issue, appellant argues the trial court’s sentence for the solicitation to commit

capital murder charge violates due process because it exceeds the maximum punishment for the

offense charged by the indictment. The trial court sentenced appellant to life imprisonment.

Appellant asserts the body of the indictment fails to allege a first-degree solicitation of capital

murder because it does not state the victim is within a special class of individuals, which is a

necessary allegation to elevate retaliation-murder to retaliation-capital-murder.         Therefore,

appellant argues, the indictment only alleges a second-degree solicitation for murder, and the

maximum punishment for a second-degree felony is 20 years’ incarceration. Appellant cites no

legal authorities to support any argument in his second issue, including the statutory maximum

sentences for solicitation of capital murder and second-degree felonies. Because our briefing rules

require an appellant to provide citations to authorities to support the contentions made and

appellant fails to do so, we conclude his second issue presents nothing for our review. See TEX.

R. APP. P. 38.1(i).

       We also note appellant verbally acknowledged during the plea hearing that he understood

the judge had the authority to sentence him to life in prison; he made the same acknowledgement

in writing when he signed the trial court’s written admonitions. Appellant’s sentence is within the

statutory range for a first degree felony. See TEX. PENAL CODE § 12.32(a).

       B. Modification of Judgments

       In his third issue, appellant requests we modify the judgments in trial court cause numbers

199-83866-2017 and 199-83868-2017 to reflect the sentences orally pronounced in each case. The

State agrees the judgments should be modified.




                                                –4–
         Appellate courts may modify a trial court’s judgment and affirm it as modified. See TEX.

R. APP. P. 43.2(b); Bigley v. State, 865 S.W.2d 26, 27–28 (Tex. Crim. App. 1993). This Court

“has the power to correct and reform the judgment of the court below to make the record speak the

truth when it has the necessary data and information to do so.” Asberry v. State, 813 S.W.2d 526,

529 (Tex. App.—Dallas 1991, writ ref’d). Appellate courts may reform trial court judgments

where “the evidence necessary to correct the judgment appears in the record.” Id. If a clerical

error in the trial court’s judgment is brought to our attention, we have a “mandatory duty” to correct

it. Id. Where, as here, ““there is a conflict between the oral pronouncement of sentence and the

sentence in the written judgment, the oral pronouncement controls.” Taylor v. State, 131 S.W.3d

497, 500 (Tex. Crim. App. 2004)

         The trial court pronounced a sentence of ten years’ incarceration in its cause numbers 199-

83866-2017 and 199-83868-2017. However, the judgments in each of those cases show a sentence

of twenty years’ incarceration. Because we have the necessary information, we modify the

judgments in trial court cause numbers 199-83866-2017 and 199-83868-2017 to show the trial

court sentenced appellant to ten years’ incarceration in each case. We sustain appellant’s third

issue.

         We also modify the judgment in trial court cause number 199-84131-2017. Appellant

pleaded guilty to solicitation to commit capital murder for retaliation, but the object of his

retaliation was a prosecutor and not a judge. Therefore, we modify the judgment in trial court

cause number 199-84131-2017 to change the entry titled “Offense for which Defendant

Convicted” from “SOLICIATION TO COMMIT CAPITAL MURDER FOR RETALIATION

JUDGE/JUSTICE”         to   “SOLICIATION        TO     COMMIT       CAPITAL       MURDER        FOR

RETALIATION.




                                                 –5–
       C. Conclusion

       We modify the judgments in trial court cause numbers 199-83866-2017 and 199-83868-

2017 to show the trial court sentenced appellant to ten years’ incarceration in each case and affirm

as modified. We also modify the judgment in trial court cause number 199-84131-2017 to change

the entry titled “Offense for which Defendant Convicted” from “SOLICIATION TO COMMIT

CAPITAL MURDER FOR RETALIATION JUDGE/JUSTICE” to “SOLICIATION TO

COMMIT CAPITAL MURDER FOR RETALIATION, and affirm as modified. We affirm the

judgments in the remaining five cause numbers.




                                                   /Erin A. Nowell/
                                                   ERIN A. NOWELL
                                                   JUSTICE


Do Not Publish
TEX. R. APP. P. 47.2(b)
181437F.U05




                                                –6–
                               Court of Appeals
                        Fifth District of Texas at Dallas
                                      JUDGMENT

 DANIEL BARRY STEFFEN, Appellant                    On Appeal from the 199th Judicial District
                                                    Court, Collin County, Texas
 No. 05-18-01437-CR         V.                      Trial Court Cause No. 199-83863-2017.
                                                    Opinion delivered by Justice Nowell.
 THE STATE OF TEXAS, Appellee                       Justices Partida-Kipness and Evans
                                                    participating.

       Based on the Court’s opinion of this date, the judgment of the trial court is AFFIRMED.


Judgment entered this 27th day of February, 2020.




                                              –7–
                               Court of Appeals
                        Fifth District of Texas at Dallas
                                      JUDGMENT

 DANIEL BARRY STEFFEN, Appellant                    On Appeal from the 199th Judicial District
                                                    Court, Collin County, Texas
 No. 05-18-01438-CR         V.                      Trial Court Cause No. 199-83864-2017.
                                                    Opinion delivered by Justice Nowell.
 THE STATE OF TEXAS, Appellee                       Justices Partida-Kipness and Evans
                                                    participating.

       Based on the Court’s opinion of this date, the judgment of the trial court is AFFIRMED.


Judgment entered this 27th day of February, 2020.




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

 DANIEL BARRY STEFFEN, Appellant                    On Appeal from the 199th Judicial District
                                                    Court, Collin County, Texas
 No. 05-18-01439-CR         V.                      Trial Court Cause No. 199-83865-2017.
                                                    Opinion delivered by Justice Nowell.
 THE STATE OF TEXAS, Appellee                       Justices Partida-Kipness and Evans
                                                    participating.

       Based on the Court’s opinion of this date, the judgment of the trial court is AFFIRMED.


Judgment entered this 27th day of February, 2020.




                                              –9–
                               Court of Appeals
                        Fifth District of Texas at Dallas
                                      JUDGMENT

 DANIEL BARRY STEFFEN, Appellant                    On Appeal from the 199th Judicial District
                                                    Court, Collin County, Texas
 No. 05-18-01440-CR         V.                      Trial Court Cause No. 199-83866-2017.
                                                    Opinion delivered by Justice Nowell.
 THE STATE OF TEXAS, Appellee                       Justices Partida-Kipness and Evans
                                                    participating.

        Based on the Court’s opinion of this date, the judgment of the trial court is MODIFIED
as follows:

      As the “Punishment and Place of Confinement,” we DELETE the words “20 YEARS
INSTITUTIONAL DIVISION, TDCJ.”
      As the “Punishment and Place of Confinement,” we ADD the words “10 YEARS
INSTITUTIONAL DIVISION, TDCJ.”

As REFORMED, the judgment is AFFIRMED.


Judgment entered this 27th day of February, 2020.




                                             –10–
                               Court of Appeals
                        Fifth District of Texas at Dallas
                                      JUDGMENT

 DANIEL BARRY STEFFEN, Appellant                    On Appeal from the 199th Judicial District
                                                    Court, Collin County, Texas
 No. 05-18-01441-CR         V.                      Trial Court Cause No. 199-83867-2017.
                                                    Opinion delivered by Justice Nowell.
 THE STATE OF TEXAS, Appellee                       Justices Partida-Kipness and Evans
                                                    participating.

       Based on the Court’s opinion of this date, the judgment of the trial court is AFFIRMED.


Judgment entered this 27th day of February, 2020.




                                             –11–
                               Court of Appeals
                        Fifth District of Texas at Dallas
                                      JUDGMENT

 DANIEL BARRY STEFFEN, Appellant                    On Appeal from the 199th Judicial District
                                                    Court, Collin County, Texas
 No. 05-18-01442-CR         V.                      Trial Court Cause No. 199-83868-2017.
                                                    Opinion delivered by Justice Nowell.
 THE STATE OF TEXAS, Appellee                       Justices Partida-Kipness and Evans
                                                    participating.

        Based on the Court’s opinion of this date, the judgment of the trial court is MODIFIED
as follows:

      As the “Punishment and Place of Confinement,” we DELETE the words “20 YEARS
INSTITUTIONAL DIVISION, TDCJ.”
      As the “Punishment and Place of Confinement,” we ADD the words “10 YEARS
INSTITUTIONAL DIVISION, TDCJ.”

As REFORMED, the judgment is AFFIRMED.


Judgment entered this 27th day of February, 2020.




                                             –12–
                               Court of Appeals
                        Fifth District of Texas at Dallas
                                      JUDGMENT

 DANIEL BARRY STEFFEN, Appellant                    On Appeal from the 199th Judicial District
                                                    Court, Collin County, Texas
 No. 05-18-01443-CR         V.                      Trial Court Cause No. 199-83869-2017.
                                                    Opinion delivered by Justice Nowell.
 THE STATE OF TEXAS, Appellee                       Justices Partida-Kipness and Evans
                                                    participating.

       Based on the Court’s opinion of this date, the judgment of the trial court is AFFIRMED.


Judgment entered this 27th day of February, 2020.




                                             –13–
                               Court of Appeals
                        Fifth District of Texas at Dallas
                                      JUDGMENT

 DANIEL BARRY STEFFEN, Appellant                    On Appeal from the 199th Judicial District
                                                    Court, Collin County, Texas
 No. 05-18-01444-CR         V.                      Trial Court Cause No. 199-84131-2017.
                                                    Opinion delivered by Justice Nowell.
 THE STATE OF TEXAS, Appellee                       Justices Partida-Kipness and Evans
                                                    participating.

        Based on the Court’s opinion of this date, the judgment of the trial court is MODIFIED
as follows:

     As the “Offense for which Defendant Convicted,” we DELETE the words
“JUDGE/JUSTICE.” The “Offense for which Defendant Convicted is “SOLICIATION TO
COMMIT CAPITAL MURDER FOR RETALIATION.”

As REFORMED, the judgment is AFFIRMED.


Judgment entered this 27th day of February, 2020.




                                             –14–
