MODIFY and AFFIRM; and Opinion Filed July 9, 2019.




                                               In The
                                 Court of Appeals
                          Fifth District of Texas at Dallas
                                        No. 05-18-00549-CR

                             QUINTON GOLD HODGE, Appellant
                                          V.
                              THE STATE OF TEXAS, Appellee

                       On Appeal from the 401st Judicial District Court
                                    Collin County, Texas
                           Trial Court Cause No. 401-83842-2017

                              MEMORANDUM OPINION
                          Before Justices Schenck, Osborne, and Reichek
                                   Opinion by Justice Osborne
       Quinton Gold Hodge appeals the trial court’s final judgment convicting him of attempted

capital murder. Hodge was indicted for the offenses of attempt to commit capital murder with a

deadly weapon (count I) and aggravated robbery with a deadly weapon (count II). He entered into

a plea bargain agreement with the State where the State agreed to abandon count II of the

indictment in exchange for Hodge’s guilty plea to count I. Hodge pleaded guilty and the trial court

found that he used a deadly weapon during the commission of the offense and assessed his

punishment at forty years of imprisonment. Hodge raises one issue on appeal arguing the trial

court erred when, during the hearing on punishment, it admitted gang evidence that exceeded its

allowable purpose. We conclude that we have jurisdiction over this appeal involving a plea bargain

and the trial court did not err. Also, we modify the judgment to reflect the trial court’s finding that
Hodge used or exhibited a deadly weapon during the commission of the offense. The trial court’s

judgment is affirmed as modified.

                                I. FACTUAL AND PROCEDURAL CONTEXT

          Pursuant to a plea bargain, Hodge pleaded guilty to the offense of attempted capital murder

with a deadly weapon (count I) and the State agreed to abandon the aggravated robbery charge

(count II). No agreement was made between Hodge and the State as to Hodge’s punishment.

During the hearing on punishment, the State offered, without objection, and the trial court admitted

evidence relating to Hodge’s gang involvement. The trial court found that Hodge used or exhibited

a deadly weapon during the commission of the offense, but declined to make a finding of gang

violence. The trial court assessed Hodge’s punishment at forty years of imprisonment.

                                                     II. JURISDICTION

          Although neither Hodge nor the State raised any jurisdictional issues, as a preliminary

matter, we address this Court’s jurisdiction over this appeal. See Harper v. State, 567 S.W.3d 450,

453 (Tex. App.—Fort Worth 2019, no pet.). The record shows that Hodge signed an “open plea”1

that states he agreed to plead guilty to count I in exchange for the State agreeing to abandon count

II. The “open plea” admonished that “If the punishment assessed does not exceed the agreement

between you and the prosecutor, the [trial court] must give its permission to you before you may

appeal on any matter in this case except for those matters raised by written motions prior to trial.”

Under the heading “Defendant’s Waiver of Rights and Judicial Confession,” Hodge agreed to

“Waive[] the right to appeal to the Court of Appeals.”

          The hearing on Hodge’s plea took place over two days. On the first day, the trial court

admonished Hodge that “[A]s long as [the trial court] assess[es] your punishment somewhere




1
  We note that the title of the written agreement was “Plea Agreement” but someone crossed out the word “agreement” and handwrote the word
“open” before the word “plea.”

                                                                  –2–
within the range, five to 99 or life and a fine of up to $10,000, there’s not a whole lot you can do

about complaining about that punishment.” However, on the second day, at the conclusion of the

hearing on punishment, the trial court advised Hodge that he had:

          [T]he right to appeal the judgment of th[e] [trial] court. If [he] desire[d] to appeal,
          [he] must give written notice of appeal to the clerk of th[e] court within the time
          period specified by the Texas Rules of Appellate Procedure; that’s generally 30
          days from the date of sentence.

          If [his] [is] indigent, and [he is], [the trial court] will appoint an attorney to represent
          [him] on appeal. If [he] [is] not indigent, [he] will be required to pay for [his] own
          attorney and pay for the appellate record.

          If [his] appeal is unsuccessful, [he] ha[s] the right to file a pro se petition for
          discretionary review with the Court of Criminal Appeals in Austin, again, within
          the time period specified by the Texas Rules of Appellate Procedure.

          The trial court’s judgment states that the terms of the plea bargain were “open plea; state

abandons count II,” but does not mention Hodge’s right to appeal. Also, the record shows that the

trial court signed a certification of Hodge’s right to appeal, which certifies this criminal case “is

not a plea-bargain case, and [Hodge] has the right to appeal.”

          The term “open plea” is an imprecise legal term of art as it is often used colloquially to

refer to a myriad of different pleas that a defendant might enter. See Harper, 567 S.W.3d at 454.

In some instances, it suggests a plea where there was a charge bargain, but not a sentence bargain.

See id. In others, it refers to a plea where no plea bargaining of any kind has occurred. See id.

The common denominator is that in both types of “open plea,” the defendant pleads guilty without

an agreement as to the punishment he will receive. See id. However, they differ in that sometimes

the guilty plea is the product of a bargain and sometimes it is not. See id. So, although the term

“open plea” accurately conveys that a defendant’s precise punishment is unresolved, it obscures

the process that resulted in the guilty plea.2 See id. at 454–55.


2
  Some courts have expressed concern with the use of the term “open plea” to describe a charge bargain. See Harper, 567 S.W.3d
at 454 n.2 (citing Threadgill v. State, 120 S.W.3d 871, 872 (Tex. App.—Houston [1st Dist.] 2003, no pet.)); see also Rubio v. State,

                                                               –3–
         A “plea bargain” includes both a “charge bargain” and “sentence bargain.” See Shankle v.

State, 119 S.W.3d 808, 813 (Tex. Crim. App. 2003); Harper, 567 S.W.3d at 455. A “charge

bargain” refers to an arrangement whereby the State agrees to drop some of the charged counts or

reduce the charge to a less serious offense in exchange for a plea of guilty or nolo contendere. See

Shankle, 119 S.W.3d at 813; Harper, 567 S.W.3d at 455. A “sentence bargain” refers to an

agreement between the State and the defendant where the defendant promises to plead guilty or

nolo contendere to the pending charge or counts in exchange for a lesser sentence. See Shankle,

119 S.W.3d at 813; Harper, 567 S.W.3d at 455. Either plea may affect the defendant’s right to

appeal under the code of criminal procedure.

         Texas Code of Criminal Procedure article 44.02 provides:

         A defendant in any criminal action has the right of appeal . . . provided, however,
         before the defendant who has been convicted upon either his plea of guilty or nolo
         contendere before the court and the court, upon the election of the defendant,
         assesses punishment and the punishment does not exceed the punishment
         recommended by the prosecutor and agreed to by the defendant and his attorney
         may prosecute his appeal, he must have permission of the trial court.

TEX. CODE CRIM. PROC. ANN. art. 44.02. Also, Texas Rule of Appellate Procedure 25.2(a)(2)

provides, in part:

         In a plea bargain case‒that is, a case in which a defendant’s plea was guilty or nolo
         contendere and the punishment did not exceed the punishment recommended by
         the prosecutor and agreed to by the defendant‒a defendant may appeal only:

         (A)       those matters that were raised by written motion filed and ruled on before
                   trial,

         (B)      after getting the trial court’s permission to appeal, or

         (C)      where the specific appeal is expressly authorized by statute.

TEX. R. APP. P. 25.2(a)(2).



No. 02-17-00418-CR, 2019 L 1574947, at *1 n.2 (Tex. App.—Fort Worth Apr. 11, 2019, no pet.) (mem. op., not designated or
publication); State v. S.M., No. 02-18-00242-CR, 2019 WL 1186799, at *5 n.6 (Tex. App.—Fort Worth Mar. 14, 2019, no pet.)
(mem. op., not designated for publication).

                                                          –4–
       A sentence bargain clearly falls within the scope of article 44.02 and rule 25.2(a)(2). See

Shankle, 119 S.W.3d at 813; Harper, 567 S.W.3d at 455. Also, where a charge bargain effectively

caps the maximum punishment, that charge bargain falls within the scope of rule 25.2(a)(2). See

Harper, 567 S.W.3d at 455. An agreement to dismiss a pending charge, or not to bring an available

charge, effectively caps punishment at the maximum sentence for the charge that remains. See

Shankle, 119 S.W.3d at 813.

       Because the trial court’s certification of appeal stated that this “is not a plea-bargain case”

and the record was unclear, we ordered the trial court to clarify or amend its certification of appeal

and abated the appeal. As a result, the trial court amended the certification to state this “is a plea-

bargain case, but the trial court has given permission to appeal, and the defendant has the right to

appeal.” Accordingly, we conclude that we have jurisdiction over this appeal.

                                III. PUNISHMENT EVIDENCE

       In issue one, Hodge argues the trial court erred when, during the hearing on punishment, it

admitted gang evidence that exceeded its allowable purpose. He concedes that: (1) the trial court

properly admitted evidence that he was a member of a gang and the gang had a reputation for drug

activity and violence; (2) he did not preserve his complaint for appellate review; and (3) the trial

court declined to make a finding of gang violence and stated it would not hold his associate’s

behavior against him. Also, he does not allege that the trial court assessed his punishment outside

the allowable range of punishment. However, Hodge contends that the admission of evidence

relating to his gang involvement exceeded its allowable purpose. As a result, he claims that it

constitutes fundamental error because it deprived him of a fair punishment hearing by biasing the

trial court. The State responds that Hodge failed to preserve this issue for appellate review, the

trial court did not err when it admitted the evidence relating to his gang involvement, and even if

the trial court did err, the error was harmless.


                                                   –5–
        Absent an objection, a defendant waives error unless it is fundamental—that is, the error

creates egregious harm. See Mendez v. State, 138 S.W.3d 334, 338 (Tex. Crim. App. 2004).

Because Hodge concedes that he did not preserve this issue for appellate review, the only issue

before this Court is whether the alleged error is fundamental error. In this case, we need not

determine whether the alleged error was fundamental because, after reviewing the record, we find

no signs of relevant bias. See Brumit v. State, 206 S.W.3d 639, 644–45 (Tex. Crim. App. 2006)

(declining to decide whether an objection is required to preserve an error of this nature and instead

resolving the issue on the basis that the record did not reflect partiality of the trial court); see also

Sims v. State, No. 05-18-00139-CR, 2018 WL 6333250, at *2 (Tex. App.—Dallas Nov. 29, 2018,

no pet.) (mem. op., not designated for publication).

        The record shows the trial court was not improperly biased by the gang evidence. Although

the trial court expressed concern over Hodge’s pride in his gang membership and the leadership

role he played in the gang, at the conclusion of the punishment hearing, the trial court declined to

make a finding of gang violence and stated:

        There’s no question in my mind that you are a gang member, but I’m not convinced
        just yet that this crime is made in furtherance of gang activity. The fact that you
        were running with another gangbanger while you were doing it doesn’t necessarily
        get you there. So I’m going to decline the State’s request that I make that a finding.

        ....

        Understand, Mr. Hodge, I’m not going to hold any of your [gang] associate’s [sic]
        behavior against you for the time period you’ve been incarcerated. There’s no
        indication that you’re acting, planning, or otherwise.

 Also, the trial court stated that, after hearing the testimony of Hodge’s brother, it reduced the

sentence it was initially going to assess by ten years.

        Issue one is decided against Hodge.




                                                  –6–
                                     IV. MODIFICATION

       Although neither party raises the issue, we observe that the final judgment incorrectly states

that the trial court did not make an affirmative deadly-weapon finding. The record shows the

indictment alleged that during the commission of count I, Hodge used or exhibited a deadly

weapon, namely a firearm. Also, at the conclusion of the hearing on punishment, the trial court

stated, “Furthermore, I’m going find that you used or exhibited a deadly weapon in the commission

of this crime, to-wit, a firearm.” However, under the heading “Findings on Deadly Weapon” the

judgment states “N/A.” An appellate court has the authority to modify an incorrect judgment to

make the record speak the truth when it has the necessary information to do so. See R. APP. P.

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

813 S.W.2d 526, 529–30 (Tex .App.—Dallas 1991, pet. ref’d). We conclude the trial court’s final

judgment should be modified to include an affirmative deadly weapon finding. See R. APP. P.

43.2(b); Bigley, 865 S.W.2d at 27–28; Asberry, 813 S.W.2d at 529–30. Accordingly, the judgment

is modified as follows: “Findings on Deadly Weapon: N/A” is modified to read “Findings on

Deadly Weapon: Yes: Firearm.”

                                       V. CONCLUSION

       We have jurisdiction over this appeal. The trial court did not err by admitting gang

evidence that exceeded its allowable purpose during the hearing on punishment. Also, the final

judgment is modified to reflect an affirmative deadly-weapon finding.

       The trial court’s judgment is affirmed as modified.




Do Not Publish                                     /Leslie Osborne/
TEX. R. APP. P. 47                                 LESLIE OSBORNE
                                                   JUSTICE
180549F.U05

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

 QUINTON GOLD HODGE, Appellant                       On Appeal from the 401st Judicial District
                                                     Court, Collin County, Texas
 No. 05-18-00549-CR         V.                       Trial Court Cause No. 401-83842-2017.
                                                     Opinion delivered by Justice Osborne.
 THE STATE OF TEXAS, Appellee                        Justices Schenck and Reichek participating.

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

       the portion of the judgment that reads “Findings on Deadly Weapon: N/A” is
       modified to read “Findings on Deadly Weapon: Yes: Firearm.”

As REFORMED, the judgment is AFFIRMED.


Judgment entered this 9th day of July, 2019.




                                               –8–
