Affirmed as modified; Opinion Filed November 26, 2019




                                             In The
                               Court of Appeals
                        Fifth District of Texas at Dallas
                                      No. 05-18-01097-CR

                              JOHN HENRY ALLEN, Appellant
                                          V.
                              THE STATE OF TEXAS, Appellee

                      On Appeal from the 203rd Judicial District Court
                                   Dallas County, Texas
                           Trial Court Cause No. F18-52271-P

                             MEMORANDUM OPINION
                          Before Justices Myers, Osborne, and Nowell
                                   Opinion by Justice Myers
       A jury convicted appellant John Henry Allen of assault on a peace officer and, following a

punishment hearing, the trial court sentenced appellant to ten years’ imprisonment. In only one

issue, appellant argues the judgment should be modified to reflect that appellant’s sentence

resulted from a plea agreement.

       The record reflects that, at the close of the punishment hearing, the trial court stated: “So

I will sentence you pursuant to the plea bargain agreement, which was an oral plea bargain

agreement on the record, and you agreed to it, [appellant], to ten years [sic] confinement in the

Texas Department of Criminal Justice[.]” The judgment shows that the punishment was assessed

by the “COURT,” and it further reads that the punishment and place of confinement is “10 YEARS

INSTITUTIONAL DIVISION, TDCJ.” The clerk’s record contains no plea-bargain agreement

papers. The trial court’s certification of appellant’s right of appeal contains a checkmark in the
box adjacent to the pre-printed language, “I, judge of the trial court, certify this criminal case: is

not a plea-bargain case, and that the defendant has the right of appeal[.]” The State argues in its

brief that although the judgment does not state that the sentence was an agreed sentence, it is not

incorrect in stating that the trial court assessed appellant’s punishment. However, the State says it

“is not adverse to this Court modifying the judgment to reflect Appellant’s sentence was an ‘agreed

sentence.’”

       We have the power to modify an incorrect judgment to make the record speak the truth

when it has the necessary information before it 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 will modify the judgment in this case to

reflect that the sentence assessed by the trial court was an agreed sentence.

       As modified, the judgment of the trial court is affirmed.




                                                    /Lana Myers/
                                                    LANA MYERS
                                                    JUSTICE

Do Not Publish
Tex. R. Civ. P. 47.2(b)
181097F.U05




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                               Court of Appeals
                        Fifth District of Texas at Dallas
                                      JUDGMENT

 JOHN HENRY ALLEN, Appellant                        On Appeal from the 203rd Judicial District
                                                    Court, Dallas County, Texas
 No. 05-18-01097-CR         V.                      Trial Court Cause No. F18-52271-P.
                                                    Opinion delivered by Justice Myers.
 THE STATE OF TEXAS, Appellee                       Justices Osborne and Nowell 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 entitled, “Punishment and Place of Confinement: 10
       YEARS INSTITUTIONAL DIVISION, TDCJ,” should be changed to read:
       “Punishment and Place of Confinement: AGREED SENTENCE 10 YEARS
       INSTITUTIONAL DIVISION, TDCJ.”

As REFORMED, the judgment is AFFIRMED.

Judgment entered this 26th day of November, 2019.




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