Affirmed as Modified; Opinion Filed October 2, 2019.




                                               In The
                                Court of Appeals
                         Fifth District of Texas at Dallas
                                       No. 05-19-00027-CR

                             CLARENCE RAY DAVIS, Appellant
                                          V.
                              THE STATE OF TEXAS, Appellee

                      On Appeal from the Criminal District Court No. 1
                                   Dallas County, Texas
                           Trial Court Cause No. F-1824087-H

                              MEMORANDUM OPINION
                           Before Justices Myers, Osborne, and Nowell
                                    Opinion by Justice Nowell
       Clarence Ray Davis pleaded guilty to aggravated sexual assault of a child under the age of

fourteen, and the trial court sentenced him to twenty-two years’ confinement. In a single issue,

appellant asserts the sentence violates the objectives of the penal code. In a single cross issue, the

State requests we modify the judgment to correctly show appellant did not enter a plea bargain.

We modify the judgment and affirm as modified.

       Appellant was charged with continuous sexual abuse of a child, but agreed to plead guilty

to the reduced charge of aggravated sexual assault of a child. Appellant requested the trial court

assess his sentence. Testimony at the sentencing proceeding showed appellant sexually assaulted

his wife’s daughter, who was fifteen-years-old at the time of sentencing, for several years. Since

the assaults, the complainant was admitted to a mental hospital twice for depression, anxiety, and
suicidal ideation; was diagnosed with PTSD; cut herself; was attending weekly therapy; and was

taking medication. The State agreed to allow appellant to plead guilty so the complainant would

not have to testify before a jury.

       Appellant’s cousins testified about widespread sexual abuse in their family spanning

multiple generations. One cousin stated: “My family is sick. This molestation has been going on

since my great-grandmother’s time, from my understanding. My mother was molested as a baby.

. . . All of my cousins, the majority, have been molested.” A different cousin explained appellant

was abused as a child: “my grandmother would make him come into the restroom and bathe her

and I didn’t understand to my heart why a young kid would bathe a grown adult. But now as I’m

older and I think about it she was sick, she had issues.” Still another cousin testified appellant

knows what happens to children who are sexually abused; she stated: “I don’t understand for the

life of me why he felt like this [sexually assaulting his wife’s daughter] was okay and why he felt

like he could get away with doing something like this, especially when he grew up around it so he

knows exactly what transpired with me.”

       After hearing the evidence, the trial judge stated: “Now, the State has already given you a

big break. Your lawyer has done a good job to convince the State to reduce your charge from

Continuous Sexual Assault of a young child to Aggravated Sexual Assault of a child. You are

guilty of the originally [sic] offense of Continuous Sexual Abuse [sic], but by the State agreeing

to what your lawyer wanted[,] the State is cutting you a break because whatever time I give you,

after you serve one-half of it you will be eligible to seek parole.” He then sentenced appellant to

twenty-two years’ confinement.

       In his sole issue, appellant argues the trial court’s refusal to place him on community

supervision in light of his need for rehabilitation was an abuse of discretion; appellant concedes

the sentence assessed is within the statutory range. Appellant cites section 1.02 of the penal code

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to support his argument. Texas Penal Code section 1.02, titled “Objectives of Code,” lists multiple

objectives, including to “insure the public safety” through deterrent influences of penalties,

rehabilitation of those convicted, and punishment as may be necessary to prevent likely recurrence

of criminal behavior. See TEX. PENAL CODE ANN. § 1.02(1).

       On appeal, we “give a great deal of discretion to a trial judge’s determination of the

appropriate punishment in any given case.” Foster v. State, 525 S.W.3d 898, 911 (Tex. App.—

Dallas 2017, pet. ref’d) (citing Jackson v. State, 680 S.W.2d 809, 814 (Tex. Crim. App. 1984)).

Generally, as long as the sentence is within the proper range of punishment, it will not be disturbed

on appeal. Id. (citing Jackson, 680 S.W.2d 814).

       Although appellant argues the trial court abused its discretion by refusing to place him on

community supervision “in light of his need for rehabilitation,” we do not agree. The record shows

appellant assaulted his wife’s teenage daughter over the course of multiple years and, as a result,

she has been treated for depression, anxiety, and suicidal ideation in a mental hospital on two

occasions; was diagnosed with PTSD; cuts herself; attends therapy each week; and takes

medication. While the trial court acknowledged appellant’s “need for help,” incarceration does

not mean he will be denied the opportunity for rehabilitation. Given the nature of the offense and

its circumstances as well as the fact that the sentence is within the statutory range, we cannot

conclude appellant’s sentence violates the penal code’s objectives as described in section 1.02.

See TEX. PENAL CODE ANN. § 1.02(1). We overrule appellant’s sole issue.

         In its cross-issue, the State requests we modify the trial court’s judgment to show

appellant did not enter a plea bargain. We have the power to modify an incorrect judgment when

we have the necessary data and information to do so. See TEX. R. APP. P. 43.2(b); Bigley v. State,

865 S.W. 2d 26, 27–28 (Tex. Crim. App. 1993); Owens v. State, No. 05-18-00759-CR, 2019 WL

3729507, at *1 (Tex. App.—Dallas Aug. 8, 2019, no pet. h.) (mem. op., not designated for

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publication). The judgment states: “Terms of Plea Bargain: 22 years penitentiary.” However, the

record in this case indicates appellant and the State reached a plea bargain agreement as to the

offense, but not as to punishment. The trial court assessed punishment. We sustain the State’s

cross-issue and modify the judgment to show appellant did not reach a plea bargain with the State

to serve twenty-two years’ in the penitentiary.

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




                                                    /Erin A. Nowell/
                                                    ERIN A. NOWELL
                                                    JUSTICE


Do Not Publish
TEX. R. APP. P. 47.2(b)
190027F.U05




                                                  –4–
                               Court of Appeals
                        Fifth District of Texas at Dallas
                                      JUDGMENT

 CLARENCE RAY DAVIS, Appellant                      On Appeal from the Criminal District Court
                                                    No. 1, Dallas County, Texas
 No. 05-19-00027-CR         V.                      Trial Court Cause No. F-1824087-H.
                                                    Opinion delivered by Justice Nowell.
 THE STATE OF TEXAS, Appellee                       Justices Myers and Osborne participating.

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

       We DELETE the words “22 Years Penitentiary” under the heading “Terms of
       Plea Bargain.”

As REFORMED, the judgment is AFFIRMED.


Judgment entered this 2nd day of October, 2019.




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