                                                                      PD-0743-15
                                                     COURT OF CRIMINAL APPEALS
                                                                     AUSTIN, TEXAS
                                                     Transmitted 7/8/2015 9:15:02 AM
                                                       Accepted 7/9/2015 3:57:01 PM
                                                                      ABEL ACOSTA
                         PD-0743-15                                           CLERK
                         PD-0744-15

       IN THE TEXAS COURT OF CRIMINAL APPEALS
   _________________________________________________

                     CODY BRIGHT
                         APPELLANT

                            vs.

                  THE STATE OF TEXAS
                       APPELLEE
   _________________________________________________

            FROM THE FIFTH COURT OF APPEALS
       CAUSE NOS. 05-13-00997-CR & 05-13-00998-CR

    APPEAL FROM THE 283RD JUDICIAL DISTRICT COURT OF
   DALLAS COUNTY, TEXAS, CAUSE NOS. F12-239700, -977
   _________________________________________________

           APPELLANT’S PETITION FOR
            DISCRETIONARY REVIEW
   _________________________________________________

BRUCE ANTON                       SORRELS, UDASHEN & ANTON
State Bar No. 01274700            2311 Cedar Springs, Suite 250
ba@sualaw.com                     Dallas, Texas 75201
                                  214-468-8100 (office)
BRETT ORDIWAY                     214-468-8104 (fax)
State Bar No. 24079086
bordiway@sualaw.com               Counsel for Appellant




   July 9, 2015
               Ground for Review

Bright argued on appeal that his trial counsel
was ineffective in failing to call his girlfriend as a
witness at his punishment hearing. The court of
appeals analyzed, however, whether Bright’s
guilty plea was involuntary because counsel was
ineffective in failing to call his girlfriend as a
witness at the guilt phase of trial. Did the court of
appeals thus ignore the issue raised and neces-
sary to the disposition of Bright’s first ground of
error?




                          2
                                         Table of Contents

Ground for Review ...................................................................................... 2

Index of Authorities .................................................................................... 4

Identity of Parties and Counsel ................................................................. 5

Statement Regarding Oral Argument ....................................................... 6

Statement of the Case and Procedural History ........................................ 7

Argument .................................................................................................... 9

   The court of appeals ignored the issue raised and necessary to the
   disposition of Bright’s first ground of error. .......................................... 9

      I. Bright’s claim of ineffective assistance of counsel ........................ 9

      II. The court of appeals entirely ignored Jones’s first issue, instead
      addressing a claim never asserted ................................................... 11

Prayer ........................................................................................................ 14

Certificate of Service ................................................................................ 16

Certificate of Compliance ......................................................................... 16

Appendix ................................................................................................... 17




                                                        3
                                      Index of Authorities

Cases

Bright v. State, No. 05-13-00997-CR, 2015 WL 2400738. (Tex. App.—
  Dallas 2015)....................................................................................... 8, 12
Carsner v. State, --- S.W.3d ---, PD-0153-14, 2014 WL 4722762 (Tex.
  Crim. App. Sept. 24, 2014) ................................................................... 13
Ex parte Briggs, 187 S.W.3d 458, 469 (Tex. Crim. App. 2005)............... 12
Gipson v. State, 383 S.W.3d 152, 159 (Tex. Crim. App. 2012) ............... 13
Hill v. Lockhart, 474 U.S. 52, 59 (1985) .................................................. 12
Rivera v. State, 123 S.W.3d 21, 32 (Tex. App.—Houston [1st Dist.] 2003,
  pet. ref’d) ................................................................................................ 13
Shanklin v. State, 190 S.W.3d 154, 165 (Tex. App.—Houston [1st Dist.]
  2005, pet. dism’d) .................................................................................. 13
Sims v. State, 99 S.W.3d 600, 603 (Tex. Crim. App. 2003)............... 13, 14
Strickland v. Washington, 466 U.S. 668, 694 (1984) .............................. 13
Turrubiate v. State, 399 S.W.3d 147, 156 (Tex.Crim.App.2013) ............ 13
Wright v. State, No. 811-03, 2003 WL 22909085, at *1 (Tex. Crim. App.
  2003) ...................................................................................................... 14


Statutes

TEX. PEN. CODE §22.02 ............................................................................... 7


Rules

TEX. R. APP. P. 47.1 ................................................................................... 13




                                                       4
                  Identity of Parties and Counsel

For Appellant Cody Bright:

     RANDALL B. ISENBERG
          Trial counsel of record
     4303 North Central Expressway
     Dallas, Texas 75205

     BRUCE ANTON
     BRETT E. ORDIWAY
          Motion for new trial and appellate counsel of record
     SORRELS, UDASHEN & ANTON
     2311 Cedar Springs Suite 250
     Dallas, Texas 75201

For Appellee the State of Texas:

     CHRIS PRYOR
          Trial and motion for new trial counsel of record
     DALLAS COUNTY DISTRICT ATTORNEY’S OFFICE
     133 N. Riverside Drive
     Dallas, Texas 75027

     MICHAEL J. SANDLIN
          Appellate counsel of record
     DALLAS COUNTY DISTRICT ATTORNEY’S OFFICE
     133 N. Riverside Drive
     Dallas, Texas 75027




                                   5
               Statement Regarding Oral Argument

     The issue in this case is simple. Oral argument is not necessary to

this Court’s understanding, and is therefore waived.




                                   6
          Statement of the Case and Procedural History

     Bright’s mother called 9-1-1. On the recording of the call, admitted

at Bright’s trial, he can be heard threatening to cut someone. (SX2). The

responding officers testified that Bright’s parents told them that Bright

had threatened his mother and girlfriend with a knife. (RR2: 146).

     Bright was charged with two counts of aggravated assault with a

deadly weapon. See TEX. PEN. CODE §22.02(a)(2). He pleaded guilty, but,

at his sentencing hearing before the court, neither of his parents testi-

fied that Bright had a knife. (RR2: 160, 180). Bright’s father denied that

he had threatened them at all, and, when confronted with his earlier,

contrary statement to police, he testified that he did not recall writing

that. (RR2: 160, 163). Bright himself admitted that he had lost his tem-

per, but testified that he held only a spatula, not a knife. (RR2: 196).

Further, though, at trial, the State averred that recordings of calls be-

tween Bright and his mother while Bright was in jail reflect “that he

had scared her with the knife and that she was scared so badly she wet

her pants,” in fact only the latter is reflected on those recordings. (RR3:

35; SX3). Nonetheless, the court sentenced Bright in each case to eight

years’ imprisonment, to run concurrently. (RR2: 212).



                                    7
      Bright filed a motion requesting a new trial, on the grounds that:

(1) his trial attorney was ineffective in failing to secure as a witness his

girlfriend; (2) his trial attorney was ineffective in failing to ensure that

evidence of Bright’s parents’ prior inconsistent statements was admit-

ted for impeachment purposes only; and (3) the evidence was insuffi-

cient to establish that a deadly weapon was used. (CR1: 49-51; CR2: 50-

52)1. The trial court held a hearing on the motion, at the conclusion of

which it denied the motion.

      On appeal to the Fifth Court of Appeals at Dallas, Bright argued

his trial counsel was ineffective (1) in failing to call his girlfriend as a

witness and (2) in advising him to plead guilty. Bright v. State, No. 05-

13-00997-CR, 2015 WL 2400738. (Tex. App.—Dallas 2015). The court

overruled both grounds, but modified the trial court’s judgments to re-

flect that the trial court’s deadly weapon finding was for the use of a

knife, not a firearm. Id. at *3. No motion for rehearing was filed.




1 “CR1” refers to the Clerk’s Record in F1223970. “CR2” refers to the Clerk’s record
in trial cause no. F1223977.


                                          8
                               Argument

           The court of appeals ignored the issue raised and
           necessary to the disposition of Bright’s first
           ground of error.

                                 !   !   !

 I.   Bright’s claim of ineffective assistance of counsel

      Bright’s girlfriend, Brandi Autry, was present in the courtroom

the day he pleaded guilty. (RR3: 8). Bright’s attorney “instructed” her to

return on the day of the sentencing hearing. (RR3: 29). She was not

subpoenaed, though, and never appeared. (RR3: 6-7, 27).

      Bright filed a motion for new trial in which he complained, among

other things, that his counsel was ineffective in “fail[ing] to call Brandi

Autry as a witness.” (CR1: 50-51; CR2: 51-52). At the hearing on the

motion, Bright’s trial counsel explained that, when Autry did not arrive

for the sentencing hearing, he chose not to move for a continuance be-

cause he “thought since we were doing punishment and the basis of the

two cases was what [Bright’s] parents were going to say.” (RR3: 28)

(emphasis added). Counsel explained that he would have preferred for

her to be [at the punishment hearing],” and he “thought she would be

[t]here,” that “she was a voluntary witness.” (RR3: 31). Counsel lament-



                                     9
ed that “hindsight is a great teacher,” and that he “wish[ed] that [he]

had” called Autry. (RR3: 28). Autry testified that, in contrast to the

seemingly violent scene indicated by the 9-1-1 recording, that Bright

never touched his mother or pushed her down. (RR3: 16). The motion

was nonetheless denied. (RR3: 40).

     On appeal, Bright presented as his first issue:

     Trial counsel is ineffective if he fails to call an available and
     beneficial witness. Here, Bright’s trial counsel explicitly tes-
     tified at the hearing on Bright’s motion for a new trial that
     his failure to call Bright’s girlfriend at punishment to provid-
     ing mitigating testimony was not strategic, and that he
     “wish[ed] that [he] had.” Was Bright’s trial counsel therefore
     ineffective?

(App. Br. at 2) (emphasis added). In the body of Bright’s brief, he set out

what Autry would have testified to at his “sentencing hearing,” and ar-

gued counsel performed deficiently in failing to secure her presence.

(App. Br. at 14-15). Additionally, Bright argued counsel’s failure was

prejudicial because if Autry “had been called at punishment… she

would have testified that Bright never touched his mother or pushed

her down… minimizing the scope of the alleged assault[,]… provid[ing]

mitigating evidence[,] and advanc[ing] his defense.” (App. Br. at 15-16).




                                     10
      The State understood Bright’s argument to pertain to counsel’s

failure to call Autry at punishment, arguing in its brief that Bright

could not show prejudice because Bright was ultimately sentenced to

eight years’ imprisonment, exactly what the State offered before his

sentencing hearing. (St. Br. at 18-19).

II.   The court of appeals entirely ignored Jones’s first issue,
      instead addressing a claim never asserted

      At no point was Bright’s argument ever addressed. Instead, in a

single paragraph, the court disposed of Bright’s issue because Bright

did not contend he would have pleaded not guilty had he know the sub-

stance of Autry’s testimony:

      Bright complains about trial counsel’s advice to plead guilty
      and failure to call Brandi, who would have “minimiz[ed] the
      scope of the alleged assaults ... provided mitigating evidence
      and advanced his defense.” However, Bright does not con-
      tend, and no evidence shows, he would have insisted on going
      to trial if he had known his parents and Brandi would deny
      the use of a knife. Bright did not testify at the hearing on the
      motion for new trial, and the only testimony regarding the
      reasoning behind the guilty pleas was that of trial counsel.
      Counsel’s testimony showed the decision to make the pleas
      was influenced by his belief the trial judge would consider
      the facts and order probation. Moreover, when asked by the
      trial judge during the plea hearing if he wished to change his
      plea back to not guilty based on his testimony that he did not
      use a knife, testimony similar to that of his parents and
      what Brandi stated she would have said, Bright stated he
      did not. Viewing the record before us in the light most favor-


                                    11
     able to the trial court’s ruling, we conclude Bright has failed
     to demonstrate prejudice from trial counsel’s conduct.

Bright v. State, No. 05-13-00997-CR, 2015 WL 2400738, *2 (Tex. App.—

Dallas 2015) (emphasis added).

     The court of appeals thus quite plainly misunderstood Bright’s ar-

gument to be that his plea was involuntary because counsel was ineffec-

tive in failing to call Autry as a witness at the guilt phase of trial. See

id. (“In the context of a guilty plea, [the] second [Strickland] prong is

satisfied by a showing that the defendant would not have pleaded guilty

and would have insisted on going to trial.”) (citing Hill v. Lockhart, 474

U.S. 52, 59 (1985) (where petitioner alleged that counsel was ineffective

for failing to advise him before pleading guilty that, as a second offend-

er, he was required to serve one-half of his sentence before becoming el-

igible for parole, in order to satisfy “prejudice” requirement of standard

for evaluating claims of ineffective assistance of counsel under Strick-

land v. Washington petitioner was required to show that there was rea-

sonable probability that, but for counsel’s errors, he would not have

pleaded guilty and would have insisted on going to trial); Ex parte

Briggs, 187 S.W.3d 458, 469 (Tex. Crim. App. 2005) (retained counsel

was ineffective in limiting, for economic reasons, his investigation of


                                    12
medical evidence, before advising defendant to plead guilty). For, as to

Bright’s actual claim, the failure to call a witness at punishment is

prejudicial simply if “there is a reasonable probability that the jury’s

assessment of punishment in this case would have been less severe in

the absence of defense counsel’s deficient performance.” Shanklin v.

State, 190 S.W.3d 154, 165 (Tex. App.—Houston [1st Dist.] 2005, pet.

dism’d) (citing Strickland v. Washington, 466 U.S. 668, 694 (1984); Ri-

vera v. State, 123 S.W.3d 21, 32 (Tex. App.—Houston [1st Dist.] 2003,

pet. ref’d)).

      Last fall, this Court held that “Rule [of Appellate Procedure] 47.1

requires the courts of appeal to hand down a written opinion ‘that ad-

dresses every issue raised and necessary to the final disposition of the

appeal.’” Carsner v. State, 444 S.W.3d 1, 3 (Tex. Crim. App. 2014) (citing

TEX. R. APP. P. 47.1; Turrubiate v. State, 399 S.W.3d 147, 156 (Tex.

Crim. App. 2013); Gipson v. State, 383 S.W.3d 152, 159 (Tex. Crim. App.

2012); Sims v. State, 99 S.W.3d 600, 603 (Tex. Crim. App. 2003)); see al-

so Wright v. State, No. 811-03, 2003 WL 22909085, *1 (Tex. Crim. App.

2003) (vacating the court of appeals’s judgment and remanding where

the court “conducted no analysis in its disposition of Appellant's third



                                   13
and fourth grounds.”). Indeed, “[t]his practice maintains the integrity of

the system and improves appellate practice.” Sims, 99 S.W.3d at 603. In

Bright’s case, though, the court of appeals ignored his first issue be-

cause it misunderstood it to be a claim it clearly was not. Accordingly,

this Court should remand this case to that court to consider the correct

issue.

                                 Prayer

     Bright respectfully requests this Court to grant this petition, va-

cate the judgment of the court of appeals, and remand this case to the

court of appeals to consider Bright’s first ground of error. Sims, 99

S.W.3d at 603 (vacating the judgment of the court of appeals and re-

manding the case because the court failed to consider appellant’s argu-

ment).

                                  Respectfully submitted,


                                       /s/ Bruce Anton
                                  BRUCE ANTON
                                  Bar Card No. 01274700
                                  ba@sualaw.com

                                       /s/ Brett Ordiway
                                  BRETT ORDIWAY
                                  Bar Card No. 24079086
                                  bordiway@sualaw.com


                                   14
SORRELS, UDASHEN & ANTON
2311 Cedar Springs Road Suite 250
Dallas, Texas 75201
(214)-468-8100 (office)
(214)-468-8104 (fax)

Attorneys for Appellant




 15
                        Certificate of Service

      I, the undersigned, hereby certify that a true and correct copy of
the foregoing Appellant’s Petition for Discretionary Review was elec-
tronically served to the Dallas County District Attorney’s Office and the
State Prosecuting Attorney on July 8, 2015.


                                      /s/ Bruce Anton
                                  BRUCE ANTON




                      Certificate of Compliance

      Pursuant to TEX. R. APP. P. 9.4(i)(3), undersigned counsel certifies
that this brief complies with:

  1. the type-volume limitation of TEX. R. APP. P. 9.4(i)(2)(D) because
     this petition contains 1,223 words, excluding the parts of the brief
     exempted by TEX. R. APP. P. 9.4(i)(1).

  2. the typeface requirements of TEX. R. APP. P. 9.4(e) and the type
     style requirements of TEX. R. APP. P. 9.4(e) because this brief has
     been prepared in a proportionally spaced typeface using Microsoft
     Word 2011 in 14-point Century Schoolbook.


                                      /s/ Bruce Anton
                                  BRUCE ANTON




                                   16
Appendix




   17
Affirmed as Modified; Opinion Filed May 19, 2015




                                          Court of Appeals
                                                          S     In The


                                   Fifth District of Texas at Dallas
                                                      No. 05-13-00997-CR
                                                      No. 05-13-00998-CR

                                                CODY BRIGHT, Appellant

                                                                   V.

                                          THE STATE OF TEXAS, Appellee

                               On Appeal from the 283rd Judicial District Court
                                            Dallas County, Texas
                               Trial Court Cause Nos. F12-23970 and F12-23977

                                         MEMORANDUM OPINION
                                     Before Justices Lang, Brown, and Whitehill 1
                                              Opinion by Justice Lang

          Following open pleas of guilty, the trial court convicted Cody Bright of two charges of

aggravated assault with a deadly weapon. In two issues, Bright asserts his trial counsel was

ineffective in advising him to plead guilty and in failing to call his girlfriend, who was present

during the assaults, as a witness at the plea hearing. We modify the trial court’s judgments and,

as modified, affirm.

                                                     I. BACKGROUND

          Bright was charged with assaulting his parents by threatening them with a knife. The

assaults, partially captured on the recording of a 9-1-1 call Bright’s mother made, occurred at the

     1
       The Honorable Justice Bill Whitehill succeeded the Honorable Kerry FitzGerald, a member of the original panel. Justice Whitehill has
reviewed the briefs and record before the Court.
house of Bright’s parents and were part of a string of criminal offenses with which Bright was

charged in a span of about a year. As reflected in the 9-1-1 recording and statements Bright’s

parents made to investigating officers, the assaults occurred after Bright’s mother intervened in a

“confrontation” between Bright and his girlfriend, Brandi. “In a rage,” Bright grabbed a kitchen

knife, chased his parents and Brandi into the master bedroom, “shoved” them to the ground,

threatened “to cut” his mother and Brandi, and “slammed the blade of the knife into the floor

several times while making his threats.”

             Bright initially pleaded not guilty to the charges, but subsequently changed his pleas to

guilty. Although he pleaded guilty and the State offered into evidence the 9-1-1 recording and

the parents’ statements, Bright and his parents denied at the plea hearing that Bright used a

knife. 2 Bright also denied any pushing. Upon hearing Bright’s testimony, the trial judge asked

Bright if he “still wish[ed] to persist in [his] plea[s] of guilty.” Bright stated he did. The trial

court accepted the pleas, found Bright guilty, and assessed an eight-year sentence in each case.

              Bright hired appellate counsel and filed a motion for new trial, asserting, in relevant part,

that his trial counsel was ineffective. Specifically, he complained of counsel’s failure to call

Brandi at the plea hearing. At the hearing on the motion, Brandi testified that if called at the plea

hearing, she would have testified that Bright did not use a knife. Bright also called trial counsel.

Trial counsel testified he told Brandi to be at trial, and also asked Bright’s parents to tell her. 3

He was surprised she did not appear, but proceeded without her because “the basis of the two

cases was what [Bright’s] parents were going to say.” When questioned about Bright’s guilty

pleas, trial counsel testified he knew how Bright’s parents would testify, but he also was aware

of the statements the parents gave the officers, the content of the 9-1-1 recording, and the


     2
         Bright testified that he used “a kitchen utensil . . . like a cake spatula, a spreader.”
     3
      In his testimony at the plea hearing, Bright’s father agreed he and counsel “tried to have” Brandi at the plea hearing, and they did not
know why she failed to appear.



                                                                            –2–
possibility that the trial judge could find the parents not credible. The strategy was to leave

Bright in jail during the pendency of the cases, and “get him treatment for anger management

and drug rehabilitation.” 4 He explained he based his strategy on a “perception” that the trial

judge tended to lean “towards rehabilitation versus probation.” Trial counsel further explained

Bright had no felony convictions, and Bright “had gone a long time in his life before these

incidents occurred.” He observed the incidents occurred “in a very short time frame,” and he

“did not think they were - - the incidents and the conduct was reflective of [Bright] going

through his life.” Trial counsel believed, based on that and a pre-sentence evaluation report, that

Bright was a good candidate for probation. 5 That report recommended that if Bright were placed

on probation, he should be placed in intensive outpatient alcohol or substance abuse treatment

program and anger management classes or batterer’s intervention program.

           Following argument, the trial court denied the motion.

                                 II. INEFFECTIVE ASSISTANCE OF COUNSEL

           Bright’s claims of ineffective assistance of counsel center on the deadly weapon

allegation, In his first issue, he asserts trial counsel was ineffective in failing to call Brandi as a

witness because “[b]y minimizing the scope of the alleged assault[s], she would have provided

mitigating evidence and advanced his defense.” In his second issue, Bright asserts counsel was

ineffective in advising him to plead guilty despite the lack of evidence showing he used a knife.

                                                            A. Applicable Law

           To prevail on an ineffective assistance of counsel claim, a defendant must show by a

preponderance of the evidence that counsel’s performance was deficient and the deficient

performance prejudiced the defense. Strickland v. Washington, 466 U.S. 668, 687 (1984); Lopez

     4
        Although Bright’s father testified that Bright did not use a knife, he also testified at the plea hearing that Bright was “very upset” and he
later “drew a gun” on Bright because he was “in a panic mode.” The father thought “the idea behind the charges” was “an intervention, and he
and his wife decided to leave Bright in jail, instead of bailing him out, during the pendency of the cases so he could learn a lesson.
     5
       Both the prosecutor and trial judge observed on the record that trial counsel argued strongly for probation in plea discussions, at the plea
hearing, and “after the ruling.”



                                                                       –3–
v. State, 343 S.W.3d 137, 142 (Tex. Crim. App. 2011). The first prong requires a showing that

counsel’s performance fell below an objective standard of reasonableness under prevailing

professional norms. See Strickland, 466 U.S. at 687-88; Lopez, 343 S.W.3d at 142. The second

prong requires a showing of a reasonable probability that but for counsel’s errors, the result of

the proceeding would have been different. Strickland, 466 U.S. at 687, 694; Lopez, 343 S.W.3d

at 142. In the context of a guilty plea, this second prong is satisfied by a showing that the

defendant would not have pleaded guilty and would have insisted on going to trial. Hill v.

Lockhart, 474 U.S. 52, 59 (1985); Ex parte Briggs, 187 S.W.3d 458, 469 (Tex. Crim. App.

2005). The two prongs need not be analyzed in a particular order, and a defendant’s failure to

satisfy either prong defeats the claim. Ex parte Martinez, 330 S.W.3d 891, 901 (Tex. Crim. App.

2011); Lopez, 343 S.W.3d at 142.

                                      B. Standard of Review

       When, as here, an appellant presents his ineffective assistance of counsel claim to the trial

court in a motion for new trial, an appellate court analyzes the claim as a challenge to the denial

of the new trial motion and reviews the trial court’s ruling for abuse of discretion. See Riley v.

State, 378 S.W.3d 453, 457 (Tex. Crim. App. 2012). In conducting this review, the appellate

court views the evidence in the light most favorable to the trial court’s ruling and reverses only if

the ruling was clearly erroneous and arbitrary. Id.

                                  C. Application of Law to Facts

       Bright complains about trial counsel’s advice to plead guilty and failure to call Brandi,

who would have “minimiz[ed] the scope of the alleged assaults . . . provided mitigating evidence

and advanced his defense.” However, Bright does not contend, and no evidence shows, he would

have insisted on going to trial if he had known his parents and Brandi would deny the use of a

knife. Bright did not testify at the hearing on the motion for new trial, and the only testimony

regarding the reasoning behind the guilty pleas was that of trial counsel. Counsel’s testimony

                                                –4–
showed the decision to make the pleas was influenced by his belief the trial judge would consider

the facts and order probation. Moreover, when asked by the trial judge during the plea hearing if

he wished to change his plea back to not guilty based on his testimony that he did not use a knife,

testimony similar to that of his parents and what Brandi stated she would have said, Bright stated

he did not. Viewing the record before us in the light most favorable to the trial court’s ruling, we

conclude Bright has failed to demonstrate prejudice from trial counsel’s conduct. See Ex parte

Moody, 991 S.W.2d 856, 858 (Tex. Crim. App. 1999) (in determining whether second prong

satisfied, court considers circumstances surrounding plea and gravity of complained-of conduct);

Ex parte Murillo, 389 S.W.3d 922, 931-32 (Tex. App.—Houston [14th Dist.] 2013, no pet.)

(“Aside from applicant’s own self-serving statement that he would have insisted his counsel take

his case to trial had he known he would be deported, he presented no other evidence

corroborating his position that it would have been rational to reject a plea deal under the

circumstances.”); cf. Ex parte Harrington, 310 S.W.3d 452, 459-60 (Tex. Crim. App. 2010)

(applicant satisfied second prong where he testified his decision to plead guilty was based

entirely on counsel’s complained-of advice and trial court made findings favorable to applicant.).

Accordingly, the trial court did not abuse its discretion in denying Bright’s motion for new trial.

See Riley, 378 S.W.3d at 460. We resolve Bright’s two issues against him.

                            III. MODIFICATION OF JUDGMENT

       We note that the section in each judgment entitled “Findings on Deadly Weapon”

incorrectly recites “YES, A FIREARM.” 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 TEX. R. APP. P. 43.2(b); Bigley v. State, 865 S.W.2d 26, 27-28 (Tex. Crim. App.

1993); Asberry v. State, 813 S.W.2d 526, 529-30 (Tex. App.—Dallas 1991, pet. ref’d).

Accordingly, we modify the deadly weapon finding section in each judgment to show “YES, A

KNIFE.”

                                                –5–
                                     IV. CONCLUSION

       As modified, we affirm the trial court’s judgments.




                                                    / Douglas S. Lang/
                                                    DOUGLAS S. LANG
                                                    JUSTICE



Do Not Publish
TEX. R. APP. P. 47

130997F.U05




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

CODY BRIGHT, Appellant                               On Appeal from the 283rd Judicial District
                                                     Court, Dallas County, Texas
No. 05-13-00997-CR        V.                         Trial Court Cause No. F12-23970.
                                                     Opinion delivered by Justice Lang. Justices
THE STATE OF TEXAS, Appellee                         Brown and Whitehill participating.

      Based on the Court’s opinion of this date, we MODIFY the section of the trial court’s
judgment entitled “Findings on Deadly Weapon” to reflect “YES, A KNIFE” instead of “YES,
A FIREARM.”

As MODIFIED, we AFFIRM the judgment.


Judgment entered this 19th day of May, 2015.




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

CODY BRIGHT, Appellant                               On Appeal from the 283rd Judicial District
                                                     Court, Dallas County, Texas
No. 05-13-00998-CR        V.                         Trial Court Cause No. F12-23977.
                                                     Opinion delivered by Justice Lang. Justices
THE STATE OF TEXAS, Appellee                         Brown and Whitehill participating.

      Based on the Court’s opinion of this date, we MODIFY the section in the trial court’s
judgment entitled “Findings on Deadly Weapon” to reflect “YES, A KNIFE” instead of “YES,
A FIREARM.”

       As MODIFIED, we AFFIRM the judgment.


Judgment entered this 19th day of May, 2015.




                                               –8–
