                                 IN THE
                         TENTH COURT OF APPEALS

                                No. 10-12-00050-CR

JAMES JERRIOD BAILEY,
                                                           Appellant
v.

THE STATE OF TEXAS,
                                                           Appellee



                          From the 278th District Court
                              Leon County, Texas
                           Trial Court No. CM-11-150


                          MEMORANDUM OPINION


      In one issue, appellant, James Jerriod Bailey, challenges his conviction for

aggravated assault.   See TEX. PENAL CODE ANN. § 22.02 (West 2011).         Specifically,

appellant contends that the trial court’s judgment is void because it adjudicates him

guilty of a more serious offense than alleged in the charging instrument. Because we

find that the trial court’s judgment of guilt and deferred-adjudication order incorrectly

stated that the charged offense constituted a first-degree felony, we modify the
judgments to reflect that appellant was convicted of second-degree aggravated assault

and otherwise affirm.

                                          I.      BACKGROUND

        Appellant waived indictment and was charged by information with intentionally

or knowingly threatening Carrie Edmund with imminent bodily injury by holding a

knife to her throat and stating that he was going to kill her.1 Pursuant to a plea bargain

with the State, appellant pleaded guilty to the charged offense. The trial court deferred

a finding of guilt and placed appellant on community supervision for three years. The

trial court’s order of deferred adjudication stated that appellant was charged with

aggravated assault with a deadly weapon/family violence; that the underlying offense

corresponded with section 22.02(a)(2)(b)(1) of the Texas Penal Code; and that the

offense was a first-degree felony. See id.

        Less than a month after the trial court placed appellant on community

supervision, the State filed a “Motion to Adjudicate or Revoke,” alleging that appellant

committed a second-degree-felony and violated a protective order.2 The trial court

subsequently revoked appellant’s community supervision, found appellant guilty of the

underlying offense, and sentenced him to fifteen years in the Institutional Division of

the Texas Department of Criminal Justice. The trial court also made a deadly-weapon

finding. And as was the case with the order of deferred adjudication, the judgment

       1 Edmund executed an affidavit of non-prosecution on April 8, 2011, which appellant argues was

done because Edmund believes that he has mental-health issues that would not be treated in prison.

        2 The second-degree felony alleged in the State’s motion refers to another violent incident
transpiring between appellant and Edmund, whereby appellant allegedly punched and tried to choke
Edmund.

Bailey v. State                                                                               Page 2
adjudicating guilt stated that appellant was charged with aggravated assault with a

deadly weapon/family violence; that the underlying offense corresponded with section

22.02(a)(2)(b)(1) of the Texas Penal Code; and that the offense was a first-degree felony.

See id. Thereafter, the trial court certified appellant’s right to appeal the judgment

adjudicating guilt, and this appeal followed.

                                        II.     ANALYSIS

        In his sole issue on appeal, appellant asserts that the trial court’s judgment of

guilt is void because it adjudicates him guilty of an offense greater than that charged in

the information. Specifically, appellant argues that he could not have been found guilty

of aggravated assault in the first degree because the information did not allege that

Edmund sustained serious bodily injury.         The State concedes that the trial court’s

judgment is incorrect; however, the State argues that the crux of appellant’s complaints

pertain to the validity of the deferred-adjudication order, and as such, they are untimely

under Manuel v. State, 994 S.W.2d 658, 661-62 (Tex. Crim. App. 1999). The State also

contends that the judgment can be reformed to reflect that appellant was found guilty

of aggravated assault in the second degree and that the case does not require reversal

because appellant was sentenced within the range corresponding with second-degree

felonies.

A.      Timeliness of Appeal

        At the outset of our analysis, we address the State’s contention that appellant’s

complaints are untimely because he did not appeal from the trial court’s deferred-

adjudication order.     A defendant placed on deferred adjudication community

Bailey v. State                                                                     Page 3
supervision may not raise issues relating to the trial court’s community-supervision

order in appeals filed after his community supervision is revoked. Manuel, 994 S.W.2d

at 661-62. Instead, a defendant must raise issues relating to the community-supervision

order in an appeal taken when community supervision is originally imposed. Id.

        The Texas Court of Criminal Appeals recognized two exceptions to the foregoing

rule: (1) the “void judgment” exception, and (2) the “habeas corpus” exception. Nix v.

State, 65 S.W.3d 664, 667 (Tex. Crim. App. 2001).       The “void judgment” exception

recognizes that there are some rare situations in which a trial court’s judgment is

accorded no respect due to a complete lack of power to render the judgment in

question. Id. A void judgment is a “nullity” and can be attacked at any time. Id. at 667-

68. Thus, a defendant who was placed on deferred adjudication may raise on appeal an

error that would render the original judgment void, even if that appeal comes after the

defendant’s guilt is adjudicated. Id. at 668.

        A judgment of conviction for a crime is void only when: (1) the document

purporting to be a charging instrument does not satisfy the constitutional requisites of a

charging instrument, and thus, the trial court has no jurisdiction over the defendant; (2)

the trial court lacks subject-matter jurisdiction over the offense charged; (3) the record

reflects that there is no evidence to support the conviction; or (4) an indigent defendant

is required to face criminal trial proceedings without appointed counsel when the right

to counsel has not been waived. Id. A guilty plea is some evidence to support a

conviction. Id. at 668 n.14.



Bailey v. State                                                                     Page 4
        Here, appellant did not appeal when the community supervision was originally

imposed. Nevertheless, he relies on the “void judgment” exception established in Nix,

which allows for an attack of a void judgment at any time. Id. at 667-68. For the reasons

listed below, we do not believe that the complained-of judgment is void; accordingly,

we could overrule appellant’s complaints on timeliness grounds.          See Manuel, 994

S.W.2d at 661-62.

B.      The Judgments and Charging Instrument

        Section 22.02 of the Texas Penal Code provides the following in relevant part:

        (a) A person commits an offense if the person commits assault as defined
            in [section] 22.01 and the person:

             (1) causes serious bodily injury to another, including the person’s
                 spouse; or

             (2) uses or exhibits a deadly weapon during the commission of the
                 assault.

        (b) An offense under this section is a felony of the second degree, except
            that the offense is a felony of the first degree if:

             (1) the actor uses a deadly weapon during the commission of the
                 assault and causes serious bodily injury to a person whose
                 relationship to or association with the defendant is described by
                 Section 71.0021(b), 71.003, or 71.005, Family Code . . . .

TEX. PENAL CODE ANN. § 22.02(a)-(b).

        On the other hand, the charging instrument in this case alleged that:

        Defendant did then and there in Leon County, Texas intentionally or
        knowingly threaten Carrie Edmund, a person whose relationship to or
        association with the defendant is described by Section 71.0021(b), 71.003,
        or 71.005 of the Family Code, with imminent bodily injury by telling
        Carrie Edmund he was going to kill her as he held a knife against her
        throat, and the defendant did then and there use or exhibit a deadly

Bailey v. State                                                                      Page 5
        weapon, to-wit: a knife, which in the manner of its use or intended use
        was capable of causing death or serious bodily injury, during the
        commission of said assault . . . .

Nowhere in the charging instrument did the State allege that Edmund sustained serious

bodily injury—a necessary finding to elevate the charged offense from a second-degree

felony to a first-degree felony.      See id. § 22.02(b).    However, in a guilty-plea

memorandum, appellant indicated that he understood that he was charged with a first-

degree felony.     Moreover, appellant stipulated to the evidence contained in the

information.

        Based on the foregoing, we agree with the parties that the trial court’s judgment

of guilt and deferred-adjudication order inaccurately stated that appellant was charged

with a first-degree felony. Instead, the judgment and order should have reflected that

appellant was charged and convicted of aggravated assault in the second degree. An

appellate court has authority to reform a judgment to include an affirmative finding to

make the record speak the truth when the matter has been called to its attention by any

source. See TEX. R. APP. P. 43.2(b); Bigley v. State, 865 S.W.2d 26, 27-28 (Tex. Crim. App.

1993); French v. State, 830 S.W.2d 607, 609 (Tex. Crim. App. 1992). Accordingly, we

reform the trial court’s judgment of guilt and deferred-adjudication order to reflect that

appellant was convicted of aggravated assault in the second degree. See TEX. R. APP. P.

43.2(b); Bigley, 865 S.W.2d at 27-28; French, 830 S.W.2d at 609. However, our analysis

does not end here.

        Relying on Houston v. State, appellant argues that the underlying judgment of

guilt is void because he was not convicted of the offense charged in the indictment. See

Bailey v. State                                                                      Page 6
556 S.W.2d 345, 347 (Tex. Crim. App. 1977). But, appellant also recognizes an exception

to the foregoing rule for lesser-included offenses. See id.; see also Teague v. State, 789

S.W.2d 380, 381 (Tex. App.—Houston [1st Dist.] 1990, pet. ref’d) (“[A] trial court is

without jurisdiction to convict a defendant of an offense not charged in the indictment.

The trial court, however, may convict a defendant of an offense not charged in the

indictment, if the offense is a lesser included offense of the one charged.”). Arguably,

the offense for which appellant was actually convicted—second-degree aggravated

assault—is a lesser-included offense of the offense for which the judgment reflected—

first-degree aggravated assault. See TEX. CODE CRIM. PROC. ANN. art. 37.09 (West 2006);

see also Young v. State, No. 05-08-00834-CR, 2009 Tex. App. LEXIS 525, at **3-4 (Tex.

App.—Dallas Jan. 29, 2009, no pet.) (mem. op., not designated for publication)

(modifying a judgment to reflect that defendant was convicted of a first-degree felony

rather than a second-degree felony and concluding that an incorrect admonishment on

the range of punishment was harmless with regard to defendant’s guilty plea because

the imposed sentence is within both the actual punishment range and the range

misstated by defense counsel and the court).3 Nevertheless, it appears to us that the

judgment of guilt and deferred-adjudication order contains a scrivener’s error,

especially considering that the fifteen-year sentence that was imposed falls within the

range accorded second-degree felonies. See TEX. PENAL CODE ANN. § 12.33(a) (West


         3 Appellant does not argue on appeal that he would have withdrawn his guilty plea had he

known the correct punishment range. See Young v. State, No. 05-08-00834-CR, 2009 Tex. App. LEXIS 525,
at *3 (Tex. App.—Dallas Jan. 29, 2009, no pet.) (mem. op., not designated for publication). Nothing in the
record shows appellant was unaware of the consequences of his guilty plea and that he was harmed or
misled by the trial court’s admonishments. See id.

Bailey v. State                                                                                    Page 7
2011) (proscribing a punishment range of imprisonment “for any term of not more than

20 years or less than 2 years” for second-degree felonies). We therefore do not believe

that the underlying judgments are void. See Nix, 65 S.W.3d at 668. Appellant’s sole

issue is sustained, in part, and overruled, in part.

                                       III.    CONCLUSION

        We modify the trial court’s judgment of guilt and deferred-adjudication order to

reflect appellant’s conviction for second-degree aggravated assault and affirm the

judgments as modified.




                                                  AL SCOGGINS
                                                  Justice


Before Chief Justice Gray,
       Justice Davis, and
       Justice Scoggins
Affirmed as modified
Opinion delivered and filed July 18, 2013
Do not publish
[CR25]




Bailey v. State                                                                   Page 8
