AFFIRMED as MODIFIED and Opinion Filed May 6, 2020




                                    S  In The
                             Court of Appeals
                      Fifth District of Texas at Dallas
                                No. 05-19-00199-CR

                    NICKY EUGENE NICKENS, Appellant
                                  V.
                      THE STATE OF TEXAS, Appellee

               On Appeal from the 194th Judicial District Court
                            Dallas County, Texas
                    Trial Court Cause No. F15-00006-M

                        MEMORANDUM OPINION
                  Before Justices Schenck, Osborne, and Reichek
                           Opinion by Justice Reichek
      After Nicky Eugene Nickens violated conditions of his deferred adjudication

community supervision, the trial court adjudicated him guilty of family violence

assault and sentenced him to fifteen years in prison. He brings three issues seeking

to correct errors in the judgment. In two cross-issues, the State also requests that we

correct errors in the judgment. For reasons set out below, we sustain the issues and

cross-issues. We modify the trial court’s judgment to correct the errors and affirm

the judgment as modified.



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      In 2015, the grand jury indicted appellant for assault causing bodily injury to

M.B. on July 29, 2014, further alleging that (1) M.B. was a member of his family

and household and was a person with whom he had a dating relationship, (2)

appellant impeded M.B.’s normal breathing and circulation by applying pressure to

her throat and neck and by blocking her nose and mouth, and (3) appellant had

previously been convicted of assault against a person with whom he had a dating

relationship. See Act of May 21, 2009, 81st Leg., R.S., ch. 427, § 1, 2009 Tex. Gen.

Laws 1022–23 (amended 2017 & 2019) (current version at TEX. PENAL CODE ANN.

§ 22.01(b–3). The offense is a second-degree felony. Id. The indictment also

alleged two prior felony convictions as punishment enhancement.

      The State subsequently struck the second felony enhancement paragraph and

reached a plea agreement with appellant. Pursuant to that agreement, appellant

pleaded guilty to the offense “exactly as alleged in the charging instrument” and true

to the remaining enhancement paragraph in exchange for four years’ deferred

adjudication community supervision and a $1,000 fine. On March 2, 2015, the trial

court accepted appellant’s pleas, found the evidence substantiated guilt, and assessed

punishment in accordance with the plea agreement.

      Fifteen months later, the trial court modified appellant’s community

supervision. On September 28, 2017, the State filed a motion to proceed with an

adjudication of guilt and amended the motion on October 29, 2018, alleging five



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violations of condition (a) and violations of conditions (d), (h), (j), (k), (l), and (n)

of the terms of his community supervision.

       Later, during adjudication hearings, the trial court admonished appellant that

since he previously pleaded guilty to the enhancement paragraph and the court found

the paragraph to be true, his range of punishment would be between five and ninety-

nine years or life.     See TEX. PENAL CODE ANN. § 12.32 (first-degree felony

punishment); 12.42(b) (provision for enhancing punishment of second-degree felony

to first degree with prior felony conviction). Appellant pleaded true to the violations

without an agreement as to punishment. After an evidentiary hearing, the trial court

found appellant violated (a)-one, (a)-two, (a)-three, (a)-four, (h), (j), (k), (l), and (n),

but that he did not violate (a)-five and (d). The court granted the motion to

adjudicate, found appellant guilty of the charged offense of assault, and sentenced

him to fifteen years in prison.

       In three issues, appellant requests this Court to modify the judgment to reflect

(1) the community supervision violations the trial court found not true, (2) there was

no plea bargain on the amended motion to adjudicate guilt, and (3) the correct name

of the offense. In two cross-issues, the State asks that we correct the judgment to

reflect the correct offense of conviction and corresponding statute.

       We have 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.

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State, 813 S.W.2d 526, 529 (Tex. App.—Dallas 1991, pet. ref’d) (en banc).

Corrections to the record are limited to clerical errors and are not appropriate for

errors involving judicial reasoning. Blanton v. State, 369 S.W.3d 894, 897–98 (Tex.

Crim. App. 2012).

      The judgment signed by the trial court states: “While on community

supervision, Defendant violated the terms and conditions of community supervision

as set out in the State’s AMENDED Motion to Adjudicate Guilt as follows: See

attached Motion to Adjudicate Guilt.”           The attached motion lists all of the

allegations, but allegations (a)-five and (d) have a pen mark through them. The

record establishes that the trial court found allegations (a)-five and (d) not true, and

the State agrees it is unclear whether the pen mark is a memorialization of the trial

court’s not true findings. Given the judgment’s ambiguity, we sustain the first issue

and modify the judgment to specifically reflect the violations that the trial court

found true.

      The judgment also includes the following language: “Terms of Plea Bargain:

15 YEARS TDCJ.” The record, however, establishes and the State agrees that

appellant entered an open plea to the motion to adjudicate. We sustain the second

issue and correct the judgment to reflect there was no plea bargain.

      Finally, the judgment lists the offense for which appellant was convicted as

“ASSAULT FAMILY VIOLENCE IMPEDE/BREATHE/CIRCUALTION [sic]

ENHANCE” and identifies the statute for the offense as “22.01 Penal Code.”

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Appellant asks that we remove the term “ENHANCE” because it is unclear whether

the term refers to the prior misdemeanor conviction used to classify the offense as a

second-degree felony as opposed to the prior felony conviction used to enhance

punishment to a first-degree felony. The State does not oppose the removal of the

term “ENHANCED,” but asks that we substitute the phrase “PREVIOUS

CONVICTION” or “PREV CONV” as shown in the original indictment and

appellant’s signed judicial confession. Additionally, the State asks us to correct the

statute from 22.01 of the penal code to the more specific 22.01(b–1).

      The record shows that appellant was indicted for and pleaded guilty to the

offense of assault family violence with allegations that he impeded the

complainant’s breathing or circulation and had been previously convicted on a

family violence assault. See Act of May 21, 2009, 81st Leg., R.S., ch. 427, § 1, 2009

Tex. Gen. Laws 1022–23 (amended 2017 & 2019) (current version at TEX. PENAL

CODE ANN. § 22.01(b–3). The trial court subsequently found him guilty of the

offense as charged in the indictment. Accordingly, we sustain appellant’s third issue

and the State’s cross issue to correct the name of the offense as suggested by the

State. We also sustain the State’s cross-issue to correct the statute for the offense to

section 22.01(b–1) of the penal code (now found at section 22.01(b–3)).




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      We affirm the trial court’s judgment as modified.




                                         /Amanda L. Reichek/
                                         AMANDA L. REICHEK
                                         JUSTICE


Do Not Publish
TEX. R. APP. P. 47.2(b)
190199F.U05




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

NICKY EUGENE NICKENS,                             On Appeal from the 194th Judicial
Appellant                                         District Court, Dallas County, Texas
                                                  Trial Court Cause No. F15-00006-M.
No. 05-19-00199-CR             V.                 Opinion delivered by Justice
                                                  Reichek; Justices Schenck and
THE STATE OF TEXAS, Appellee                      Osborne participating.

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

      (1) To state: “While on community supervision, Defendant violated
      the terms and conditions of community supervision as set out in the
      State’s AMENDED Motion to Adjudicate Guilt as follows: (a)-one,
      (a)-two, (a)-three, (a)-four, (h), (j), (k), (l), and (n)”;

      (2) To state “None” under the heading “Terms of Plea Bargain”;

      (3) To state TEX. PENAL CODE ANN. § 22.01(b–1) (now found at § 22.01(b–3)
      under the heading “Statute for Offense”; and

      (4) To state Assault Family Violence Impede/Breathe/Circulation/ Previous
      Conviction under the heading “Offense for which Defendant Convicted.”

As MODIFIED, the judgment is AFFIRMED.


Judgment entered May 6, 2020


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