MODIFY and AFFIRM; and Opinion Filed June 17, 2019.




                                               In The
                                 Court of Appeals
                          Fifth District of Texas at Dallas
                                        No. 05-18-00184-CR

                               VICTOR LEE WILKS, Appellant
                                           V.
                               THE STATE OF TEXAS, Appellee

                       On Appeal from the Criminal District Court No. 7
                                    Dallas County, Texas
                            Trial Court Cause No. F-1641359-Y

                              MEMORANDUM OPINION
                         Before Justices Brown, Schenck, and Pedersen III
                                     Opinion by Justice Brown
       Following a jury trial, Victor Lee Wilks appeals his conviction for aggravated robbery. In

four issues, he contends the evidence is insufficient to prove he committed the offense as a party;

the trial court erred in overruling his motion for new trial based on ineffective assistance of counsel

and on discovery of new evidence; and the trial court erred in quashing two subpoenas duces

tecum. We modify the trial court’s judgment to reflect the fine imposed by the jury and affirm the

judgment as modified.

                                           BACKGROUND

       The indictment charging appellant with aggravated robbery alleged that he “intentionally

and knowingly, while in the course of committing theft of property and with intent to obtain or

maintain control of said property, cause[d] bodily injury to another, JUAN DAVILA . . . by
SHOOTING THE COMPLAINANT, and [appellant] used and exhibited a deadly weapon, to-wit:

A HANDGUN.” See TEX. PENAL CODE ANN. § 29.03(a). The person who shot Davila was

Bradden Braxton. At trial, Davila testified that at about 6:30 a.m. on the morning of July 25, 2016,

he went to get a money order at a business called PLS on Town East near his home in Mesquite.

After getting the money order, he went straight home. When he got out of his car, someone yelled,

“Give me your money.” Davila saw a man in a mask holding a gun. The man pointed a gun at

Davila’s face from about a yard away. After Davila saw the man in the mask, he also saw a black

Audi with a broken headlight pass by. Davila refused to give the man his money, and they argued.

The man shot Davila in the face, shattering his left jaw. Davila was hospitalized for two months

as a result of the shooting.

        Mesquite Police Officer Zach Embrey was one of the first people to respond to a 9-1-1 call

from Davila’s house. He saw Davila’s vehicle in the driveway, a large amount of blood outside

the car, and a trail of blood leading to the front door of the house. Davila was on the ground in

front of the door. Embrey tended to Davila, and officers spoke to family members who were inside

the house. After medical help arrived for Davila, Embrey and others briefly canvassed the

neighborhood. A crime scene investigator, Officer Gary O’Pry, arrived to document the incident

with photographs and collect evidence at the scene. Embrey stood with O’Pry while O’Pry took

photos and collected evidence to preserve the scene. Embrey identified various photographs as

true and accurate depictions of the crime scene and testified about what was depicted in the photos.

        Over appellant’s objection, Jose Romero testified for the State. Like Davila, Romero also

visited the PLS store in Mesquite on the morning of July 25, 2016. Romero testified that on that

day he woke up around 7 a.m. and the first thing he did was go to the PLS at Gus Thomasson and

Town East Boulevard to cash a check. He left the store without any cash because “the check . . .

didn’t have sufficient funds.” Romero went to a nearby McDonald’s and then back to his

                                                –2–
apartment complex. While Romero was still sitting in his vehicle, a man approached his truck.

The man put a gun through the open window and held it close to Romero’s neck. The man said,

“Give me your money.” When Romero responded that he did not have any money, the man said,

“Yes, you have the money . . . I followed you from the place where you cash the checks.” The

man was wearing a black mask, and he threatened to kill Romero if Romero did not give him

money. Romero again said he did not have any money, and the man shot him in the neck. When

Romero managed to get out of his vehicle, the man ran off.         Like Davila, Romero was also

hospitalized for two months.

       Detective Steven Birk, with the Mesquite Police Department, was assigned to investigate

Romero’s shooting, and Detective Jerry Corder was assigned to investigate Davila’s shooting.

Corder and Birk coordinated their investigations due to the timing and similarities in the

offenses—both victims had just left PLS when they were shot. There are cameras near the PLS at

the intersection of Town East Boulevard and Gus Thomasson. The detectives asked a police crime

analyst to look for the victims’ cars on the camera footage to see if anyone was following them.

The analyst identified a black Audi with some damage to the front passenger side; the right front

headlight was covered with black duct tape. On the video, police saw the Audi following Romero’s

vehicle, but could not tell who the driver was. Police put a picture of the Audi “out for Crime

Stoppers, airing it to the media.” Two days after the shootings, on July 27th, police got a tip that

the Audi was at an apartment complex in Dallas. Detective Birk learned the vehicle belonged to

a Victor Wilks who lived at the complex. Birk waited at a nearby business and watched for the

Audi to leave the apartment complex. When Birk saw the car, he contacted undercover officers

who followed it. The Audi went through the parking lot of the PLS business. Marked patrol units

conducted a traffic stop of the vehicle. Appellant was driving the Audi at that time and Braxton

was with him. Both men were arrested and taken into custody. When police executed a search

                                                –3–
warrant on the Audi, they found in the trunk a loaded Glock handgun as well as two plastic masks,

one blue and one black.

       Following appellant’s arrest, Detective Corder conducted two custodial interrogations of

him on July 27th and 28th. Video recordings of the interrogations were played for the jury. On

July 27th, appellant told Corder he owned the Audi and he was driving it on the morning of July

25th. His “co-defendant” Braxton was with him. Appellant indicated his co-defendant directed

him to follow both victims. Appellant gave the detective details about the route he took from the

PLS to Davila’s house. Appellant waited in the car for Braxton each time. Appellant knew they

were going to get money. He said they never discussed how Braxton was “going to do it,” but

appellant knew Braxton “probably wasn’t going to do something good.” Braxton told appellant

he did not get any money from the first victim, and they then went back to the PLS. Appellant

denied seeing a gun or any masks and denied hearing gunshots. When Corder told appellant he

knew appellant had to have seen Braxton with a mask, appellant denied seeing Braxton get in the

car. Corder testified that appellant seemed shocked to learn two people had been shot in the face.

       The next day, July 28th, appellant asked to speak to Corder again. Appellant recanted his

entire confession. He told Corder he was never there and that he was not in the car. Corder did

not believe appellant’s recantation.

       Appellant’s brother, Jeffrey Wright, testified for the defense about how he and appellant

spent the day on July 25, 2016. Wright and appellant shared an apartment at that time, and during

the early morning hours, they were home playing a video game. Wright testified they played from

6 a.m. to 10 a.m. and then went to a restaurant. Braxton occasionally stayed with them for three

or four days at a time. That morning, Braxton was at the apartment, but was asleep.

       Appellant testified at trial. He acknowledged that he owned the Audi, but denied any

knowledge of Davila’s shooting. According to appellant, on the morning of the offense, he was at

                                               –4–
his apartment sleeping. Braxton woke him at about 6 a.m. to ask for his keys, and appellant said

he could have them. Appellant testified he did not have any idea what Braxton was planning on

doing that day. When appellant told the officer on July 27th that he was driving his car, he thought

the officer was talking about that day, not the 25th. When asked about his brother’s testimony that

he and appellant were playing video games on the morning of the 25th, appellant testified that his

brother gets confused about dates and other things. Appellant testified that he was on his way to

get new liability insurance when police stopped him on July 27th. Braxton had asked to ride along

with him. When asked if it was a coincidence that he was getting new insurance in the same

parking lot as PLS, appellant denied that the businesses were located in the same lot. Appellant

testified he lied when he told Corder he was in the vehicle with Braxton robbing people on July

25th. He explained that it was his military background kicking in and that the only way out of the

interrogation was to say what Corder wanted to hear.

       The jury charge included instructions on the law of parties. The jury found appellant guilty

and assessed his punishment at eight years’ confinement and a $10,000 fine. On February 9, 2018,

the trial court signed a judgment of conviction. The written judgment does not include a fine.

       A few days later, on February 14, 2018, one of the assistant district attorneys who

prosecuted the case sent defense counsel a Brady notice. The Mesquite Police Department notified

the Dallas County District Attorney’s Office on February 13th that Officer Embrey would be

resigning from the department after it was discovered that he forged a signature on a request to

remove evidence from the property room for destruction in another case. The information was

revealed when the officer took a polygraph test as part of his application for employment with a

police department in another state.

       Appellant moved for new trial on two grounds. First, he alleged he was entitled to a new

trial due to the newly discovered evidence about Officer Embrey. Second, appellant argued that

                                                –5–
he received ineffective assistance of counsel during the punishment phase of trial. Specifically,

appellant asserted his defense counsel did not investigate and present evidence of appellant’s

“evaluation, mental health diagnosis, and treatment plan by the United States Department of

Veterans Affairs.” The trial court held a hearing on the motion, and the motion was overruled by

operation of law. This appeal followed.

                                   SUFFICIENCY OF THE EVIDENCE

         In his first issue, appellant contends the evidence is insufficient to support the jury’s guilty

verdict. He argues the evidence is insufficient to show he is criminally liable as a party to the

offense. He asserts the State did not prove beyond a reasonable doubt that he acted with intent to

promote or assist in the crime.

         A person commits aggravated robbery if he commits robbery as defined in section 29.03

of the penal code and the State proves an aggravating element. TEX. PENAL CODE ANN. §§ 29.02,

29.03.    In this case, the aggravating element was using or exhibiting a firearm.               See id.

§ 29.03(a)(2). The law of parties authorizes conviction for the collective conduct of two or more

people. Johnson v. State, 560 S.W.3d 224, 229 (Tex. Crim. App. 2018). A person is criminally

responsible for an offense committed by the conduct of another if, acting with intent to promote

or assist the commission of the offense, he solicits, encourages, directs, aids, or attempts to aid the

other person to commit the offense. TEX. PENAL CODE ANN. § 7.02(a)(2). Section 7.02(a)(2)

requires evidence that the defendant intended commission of the crime and did something to help

the other commit it. Johnson, 560 S.W.3d at 230–31. Without evidence of intentional participation

by the accused, an accused may not be convicted under the law of parties. Cary v. State, 507

S.W.3d 750, 758 (Tex. Crim. App. 2016). The necessary specific intent can be proven through

circumstantial evidence, and we may rely on events that took place before, during, or after the

commission of the crime. Id. Where the use of a deadly weapon is an element of the offense, to

                                                  –6–
convict a defendant for aggravated robbery as party, the State has the burden to prove the defendant

knew a weapon would be used or exhibited in the commission of the offense. Sarmiento v. State,

93 S.W.3d 566, 570 (Tex. App.—Houston [14th Dist.] 2002, pet. ref’d); see Boston v. State, 373

S.W.3d 832, 839 n.7 (Tex. App.—Austin 2012), aff’d, 410 S.W.3d 321 (Tex. Crim. App. 2013).

       When reviewing the sufficiency of the evidence, we consider all of the evidence in the light

most favorable to the verdict to determine, whether, based on that evidence and the reasonable

inferences therefrom, the factfinder was rationally justified in finding guilt beyond a reasonable

doubt. Temple v. State, 390 S.W.3d 341, 360 (Tex. Crim. App. 2013); see Jackson v. Virginia,

443 U.S. 307, 318–19 (1979). The jury is the sole judge of the credibility of the witnesses and the

weight to be given their testimony. Temple, 390 S.W.3d at 360.

       Appellant does not dispute that Braxton committed aggravated robbery. His sole challenge

to the sufficiency of the evidence is that the State did not prove he himself acted with intent to

promote or assist in the crime. He argues his initial statement to Corder showed only his presence

near the crime scene and not his intent to aid the crime. Appellant also argues the State did not

prove he knew of the offense before or when it was committed.

       Contrary to appellant’s argument, the State’s evidence proved more than appellant’s mere

presence at the scene of the aggravated robbery against Davila.          The evidence, including

circumstantial evidence, showed that appellant was a full participant in the plan to follow Davila

from the PLS and use a gun to rob him. Appellant told police he was with Braxton and was driving

the car when the offenses against Davila and Romero occurred. He admitted that Braxton

instructed him to follow Davila. Appellant knew they were going to get money and knew Braxton

was not going to do “something good.” After they did not get any money from Davila, appellant

followed another car from the PLS at Braxton’s instruction. Two days after Davila was shot,

appellant and Braxton again drove together to the PLS parking lot. The masks and gun used by

                                                –7–
Braxton were found in the trunk of appellant’s car. Appellant’s testimony at trial was inconsistent.

He testified that when he told Corder he was driving he was confused about the date. He also

testified that he lied to Corder, telling him what he wanted to hear. Further, the jury could infer

appellant’s intent from the fact that he initially told Corder he was the driver of the car and later

changed his story to deny that he was there. See Couchman v. State, 3 S.W.3d 155, 163–64 (Tex.

App.—Fort Worth 1999, pet. ref’d). The jury was free to believe appellant’s statements to Corder

indicating his participation in the crime and reject his later statements to the contrary. The jury

was also free to find it implausible that appellant could have dropped Braxton off at the two

robberies and waited to pick him up, but not have been aware that Braxton used a gun and a mask,

especially since these items were still in his car when he was arrested later in the vicinity of the

PLS. We conclude the evidence is legally sufficient to prove appellant acted with intent to promote

or assist in the aggravated robbery. We overrule appellant’s first issue.

                                    MOTION FOR NEW TRIAL

       In his second and third issues, appellant contends the trial court erred in denying his motion

for new trial. Appellant first contends he was entitled to a new trial because trial counsel was

ineffective for failing to investigate his mental health history and offer his records from the

Department of Veteran’s Affairs into evidence during the punishment phase. At the hearing on

the motion for new trial, appellant presented the judge with seventy-two pages of records from the

VA hospital. Appellant contends these records reflect many facts that would have been mitigating

during the punishment phase.

Ineffective Assistance of Counsel

       We review a claim of ineffective assistance of counsel using the two-part analysis set out

in Strickland v. Washington, 466 U.S. 668, 687–88 (1984). First, an appellant must show that

counsel’s performance was deficient. Wiggins v. Smith, 539 U.S. 510, 521 (2003). To establish

                                                –8–
deficient performance, an appellant must demonstrate that counsel’s representation fell below an

objective standard of reasonableness.       Id.   Second, an appellant must show the deficiency

prejudiced the defense. Id. To establish prejudice, a defendant must show there is a reasonable

probability that, but for counsel’s unprofessional errors, the result of the proceeding would have

been different. Id. at 534. A reasonable probability is a probability sufficient to undermine

confidence in the outcome. Id.

        When an appellant presents his ineffective assistance claim to the trial court in a motion

for new trial, an appellate court analyzes this issue as a challenge to the denial of the motion for

new trial. See Charles v. State, 146 S.W.3d 204, 208 (Tex. Crim. App. 2004), superseded by

statute as stated in State v. Herndon, 215 S.W.3d 901 (Tex. Crim. App. 2007). As such, an

appellate court reviews the Strickland test through an abuse of discretion standard. We do not

substitute our judgment for the trial court’s, but rather we decide whether the trial court’s resolution

of the ineffective assistance claim was arbitrary or unreasonable. Id. We must view the evidence

in the light most favorable to the trial court’s ruling and presume that all reasonable factual findings

that could have been made against the losing party were made against that losing party. Thus, a

trial court abuses its discretion in denying a motion for new trial only when no reasonable view of

the record could support the trial court’s ruling. Id.

        Appellant’s trial counsel testified at the hearing on appellant’s motion for new trial.

Appellant told counsel he had been diagnosed with post-traumatic stress disorder and said he was

a patient at the VA hospital. Counsel testified that from his past experience, the VA hospital is

quite strict about releasing records due to the HIPAA act. Counsel told appellant that if “he had

anything that he wanted me to look at, [I’d] be happy to look at it.” Counsel told appellant that it

would be much easier for appellant to get the records himself. Counsel testified he was not aware

of certain things that were in the VA records. For example, counsel was not aware appellant had

                                                  –9–
been diagnosed with major depressive disorder by the VA or that he was prescribed Sertraline for

mood and anxiety by the VA. Counsel was not aware that appellant’s two sisters had died—one

during the same year the offense was committed. Counsel was also not aware that appellant’s

mother died when he was three years old and the VA reported her death was a major cause of his

depression. Counsel was not aware that the VA had referred appellant to outpatient therapy. Nor

was counsel aware that in 2018, some people had called to report a concern appellant might be

suicidal. Counsel testified that appellant chose not to share a lot of information with him. The

records did not show that appellant had been diagnosed with PTSD.

       Counsel has a duty to make reasonable investigations or to make a reasonable decision that

makes particular investigations unnecessary. Wiggins, 539 U.S. at 521. In this case, we need not

consider the constitutional adequacy of defense counsel’s investigation because appellant has

failed to show prejudice. Assuming without deciding that defense counsel’s performance was

deficient for failing to investigate, appellant has failed to establish that had counsel reasonably

investigated and presented appellant’s VA records at trial, there is a reasonable probability the jury

would have returned a different sentence.

       Four witnesses testified for the State at the punishment hearing, which took place on

Friday, February 9, 2018. Davila and Romero each testified about how the incident and their

injuries affected their lives. Dallas Police Officer Jacob Holmes testified about stopping appellant

for a traffic violation earlier that week—on Monday night February 5, 2018—and learning he had

a warrant out for his arrest due to a bond forfeiture. Appellant told them he had missed court for

the aggravated robbery charge because he “decided to sleep.” Also, a probation officer explained

the probation process to the jury.




                                                –10–
       Appellant’s father was the sole punishment witness for the defense. He testified his son

should get probation because he had never been in any trouble before. Appellant’s punishment

argument emphasized the fact that appellant was a military veteran and had no prior convictions.

       The VA hospital records contain some potentially mitigating evidence, such as evidence

appellant had been diagnosed with and medicated for major depressive disorder and had some

difficult family circumstances. However, the records also contain evidence that was potentially

aggravating, including evidence of appellant’s daily marijuana use, the fact that he showed up

under the influence at the hospital, and evidence that he stole a third party’s car and demanded

$1,000 for it. In addition, appellant was treated at the VA hospital well after the commission of

the instant offense. He first visited the VA hospital in December 2017. At the time, he was out

on bond for the aggravated robbery charge, which occurred in July 2016. The hospital records

indicate his most recent “mood episode” started while he was incarcerated as a result of this

offense. Further, based on the records, appellant’s treatment at the VA hospital was limited and

short-lived. After his first visit in early December 2017, he was given a provisional diagnosis of

major depressive disorder. He was seen again later in December and assigned to an outpatient

team. In early January 2018, a responder at the veterans’ crisis line reached out to appellant after

a third party expressed concerns he was suicidal. Appellant denied having suicidal thoughts. Later

in January, he was seen at a VA clinic for assistance with housing. In February 2018, appellant

did not show up for an appointment at the hospital.

       We are not persuaded by appellant’s argument that evidence he visited the VA hospital to

participate in mental health treatment would have given the jury a reason to consider appellant for

probation. Nor are we persuaded by appellant’s argument that evidence of his depression was

material because it would have corroborated his statement to police about sleeping in when he was

due to appear for trial. A determination that appellant did not show a reasonable probability that

                                               –11–
the result of the punishment phase would been different if the jury had his VA hospital records is

within the zone of reasonable disagreement. We conclude the trial court acted within its discretion

in failing to grant appellant a new trial based on ineffective assistance of counsel. See State v.

Frias, 511 S.W.3d 797, 812–16 (Tex. App.—El Paso 2016, pet. ref’d) (failure to investigate

client’s mental health issues was unreasonable, but defendant did not meet burden to establish

prejudice). We overrule appellant’s second issue.

Discovery of New Evidence

       In his third issue, appellant contends the trial court erred in denying his motion for new

trial based on the discovery of new evidence regarding Officer Embrey. We review a trial court’s

decision to deny a motion for new trial based on newly discovered evidence for an abuse of

discretion. See Jones v. State, 711 S.W.2d 35, 36 (Tex. Crim. App. 1986).              Generally, the

discovery after trial of new evidence material to the defendant constitutes a ground for new trial.

TEX. CODE CRIM. PROC. ANN. art. 40.001; Drew v. State, 743 S.W.2d 207, 226 (Tex. Crim. App.

1987). The requirements for obtaining a new trial upon newly discovered or available evidence

are: (1) the newly discovered evidence was unknown or unavailable to the defendant at the time

of trial; (2) the defendant’s failure to discover or obtain the evidence was not due to his lack of due

diligence; (3) the new evidence is admissible and not merely cumulative, corroborative, collateral,

or impeaching; and (4) the evidence is probably true and will probably bring about a different

result in a new trial. Carsner v. State, 444 S.W.3d 1, 2–3 (Tex. Crim. App. 2014).

       We will assume without deciding that the evidence would have been admissible and not

merely impeaching. We will focus our analysis in this case on requirement four—whether the

newly discovered evidence would probably bring about a different result in a new trial. Appellant

maintains it would.     He contends evidence that Officer Embrey forged a request to remove

evidence from the evidence room for destruction in another case was relevant to his integrity and

                                                –12–
credibility regarding the preservation of evidence at the crime scene in this case. He argues the

evidence was material because it was “relevant to Officer Embrey’s activities when first arriving

at the crime scene . . . and maintaining the scene until other officers arrived.” We conclude it was

within the trial court’s discretion to determine there was not a probability the outcome of the trial

would have been different. Officer Embrey was one of the first to respond to the scene of Davila’s

shooting. His involvement included tending to Davila, briefly canvassing the neighborhood, and

standing with the crime scene investigator O’Pry as O’Pry took photos and collected evidence. At

trial, Embrey identified various photographs as true and accurate depictions of the crime scene.

O’Pry also testified at trial because he conducted the search of appellant’s car and could have

identified the photographs he took. There is nothing to suggest Embrey acted improperly in this

case. Even so, the evidence collected at Davila’s house was not in dispute and had very little to

do with the State’s proof appellant committed aggravated robbery. Instead, the State’s case turned

on the video taken at the intersection near the PLS that showed appellant’s Audi following the

second victim Romero, the masks and gun found in appellant’s car, and appellant’s confession to

Detective Corder that he drove the car. The trial court did not abuse its discretion in denying

appellant’s motion for new trial on the basis of newly discovered evidence. See Jones, 711 S.W.2d

at 37 (trial court is within its discretion to deny motion for new trial where it appears newly

discovered evidence would not probably bring about a different result). We overrule appellant’s

third issue.

                                        MOTION TO QUASH

        Appellant’s fourth issue also involves the information revealed about Officer Embrey after

trial. On February 23, 2018, after the State’s Brady notice to defense counsel, appellant filed two

applications for subpoenas duces tecum. In issue four, appellant contends the trial court erred in

quashing the subpoenas. The applications were directed to “Sergeant Cumming of the Mesquite

                                               –13–
Police Department” and the custodian of records for the City of Mesquite Human Resources.

Appellant sought the production of “[a]ny and all records, documents, reports, complaints and/or

recordings concerning Officer Z. Embrey #1120, including but not limited to: Any and all written

and/or electronic materials, to wit: concerning Officer Embrey forging any requests to remove

evidence from any property room for destruction.” The City of Mesquite moved to quash the

subpoenas for various reasons and proposed to produce for in camera inspection a copy of the

Mesquite Police Department’s internal affairs file pertaining to Officer Embrey. The trial court

reviewed the file in camera and ruled that appellant was not entitled to the records because there

was no additional information in them relevant to the motion for new trial. The trial court granted

the City’s motion to quash.

       We review a trial court’s ruling on a motion to quash for an abuse of discretion. Torres v.

State, 424 S.W.3d 245, 261–62 (Tex. App.—Houston [14th Dist.] 2014, pet. ref’d). Article 24.02

of the code of criminal procedure provides for a subpoena duces tecum as follows: “If a witness

have in his possession any instrument of writing or other thing desired as evidence, the subpoena

may specify such evidence and direct that the witness bring the same with him and produce it in

court.” TEX. CODE CRIM. PROC. ANN. art. 24.02. The right of compulsory process, however, is not

absolute. Torres, 424 S.W.3d at 262. A defendant bears the burden of a plausible showing that

the evidence would be material and favorable. Id.

       Officer Embrey’s internal affairs file has been included in the appellate record under seal.

We have reviewed the file and conclude the trial court did not abuse its discretion in quashing the

subpoenas. There is little additional information in the documents about Embrey’s forgery. As

described by appellant in his brief, the records reveal “the date of the forged request, which was in

2017, the type of case in which it took place, and the proper procedure for the request and how

Officer Embrey violated that procedure.”         Appellant’s argument for why this additional

                                               –14–
information is material is the same his argument in connection with his request for a new trial. He

contends it was relevant to Embrey’s activities when arriving at the crime scene and maintaining

the scene. As discussed above in connection with issue three, appellant cannot show the newly

discovered evidence about Officer Embrey would probably bring about a different result in a new

trial. In other words, the information was not material to the case. The same is true for the slight

amount of new information in Embrey’s internal affairs file. We overrule appellant’s fourth issue.

                                      STATE’S CROSS POINT

       In a cross point, the State asks this Court to modify the trial court’s judgment to accurately

reflect that appellant’s sentence included a $10,000 fine. The judgment shows the fine assessed

as “N/A.” However, the jury assessed a $10,000 fine. The jury’s lawful verdict must be imposed

as the trial court’s judgment. Ette v. State, 559 S.W.3d 511, 517 (Tex. Crim. App. 2018). This

Court may modify the trial court’s judgment to make the record speak the truth when it has the

necessary data and information to do so. See TEX. R. APP. P. 43.2(b); Bigley v. State, 865 S.W.2d

26, 27–8 (Tex. Crim. App. 1993); Asberry v. State, 813 S.W.2d 526, 529 (Tex. App.—Dallas 1991,

pet. ref’d). Accordingly, we modify the judgment to show that the fine assessed is $10,000. See

Ette, 559 S.W.3d at 517. We sustain the State’s cross point.

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




                                                   /Ada Brown/
                                                   ADA BROWN
                                                   JUSTICE

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

180184F.U05



                                               –15–
                               Court of Appeals
                        Fifth District of Texas at Dallas
                                      JUDGMENT

 VICTOR LEE WILKS, Appellant                           On Appeal from the Criminal District Court
                                                       No. 7, Dallas County, Texas
 No. 05-18-00184-CR         V.                         Trial Court Cause No. F-1641359-Y.
                                                       Opinion delivered by Justice Brown,
 THE STATE OF TEXAS, Appellee                          Justices Schenck and Pedersen III
                                                       participating.

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

       Following the word “Fine:” we delete “$ N/A” and in its place insert “$10,000.”

As MODIFIED, the judgment is AFFIRMED.


Judgment entered this 17th day of June, 2019.




                                                –16–
