                                      In The
                                 Court of Appeals
                        Seventh District of Texas at Amarillo
                                 ________________________

                                      No. 07-14-00262-CR
                                      No. 07-14-00263-CR
                                 ________________________

                           ROBERT EARL JACKSON, APPELLANT

                                                  V.

                              THE STATE OF TEXAS, APPELLEE



                            On Appeal from the 108th District Court
                                     Potter County, Texas
       Trial Court Nos. 67,275-E & 67,276-E; Honorable Douglas R. Woodburn, Presiding


                                            July 17, 2015

                                MEMORANDUM OPINION
                     Before QUINN, C.J., and HANCOCK and PIRTLE, JJ.


       Following pleas of not guilty, Appellant, Robert Earl Jackson, was convicted by a

jury of separate offenses of sexual assault of a child and sentenced to twenty years

confinement and a $10,000 fine in trial court cause numbers 67,275-E and 67,276-E.1

       1
          TEX. PENAL CODE ANN. § 22.011(a)(2)(B), § 22.011(a)(2)(A) (West 2011). The offenses are
second degree felonies, id. at 22.011(f), punishable for any term of not more than twenty years or less
than two years and a fine not to exceed $10,000. Id. at § 12.33.
The trial court ordered the sentences to run consecutively. 2 Presenting a sole issue,

Appellant asserts the trial court abused its discretion and deprived him of due process

and equal protection of law when, at the conclusion of the punishment phase, it

instructed the jury that he had a burden to show by a preponderance of the evidence

that he had not been previously convicted of a felony. We affirm.


       BACKGROUND

       Because Appellant only challenges the punishment phase of his trial, only a brief

recitation of the facts is necessary. Appellant and his wife were hired as family teachers

at the Presbyterian Children’s Home where the victim, a fifteen-year-old female,

resided. Appellant and the victim had been involved in a six-week relationship when

she made an outcry that he had sexually assaulted her at a motel on June 5, 2013. The

authorities were contacted and an investigation resulted in Appellant’s arrest and

convictions.


       Appellant filed a written sworn motion for jury recommended community

supervision pursuant to article 42.12, section 4(e) of the Texas Code of Criminal

Procedure. After presentation of testimony during the punishment phase of trial, the

State objected to submitting verdict forms that included community supervision for

consideration by the jury because it contended Appellant had failed to present evidence

that he had not previously been convicted of a felony in Texas or any other state. TEX.

CODE CRIM. PROC. ANN. art. 42.12, § 4(e) (West Supp. 2014). Defense counsel argued

that Appellant met the eligibility requirements for community supervision by filing his

written sworn motion and that article 42.12, section 4(d) did not impose a burden of

       2
          Although the judgment in cause number 67,275-E recites that the sentence runs concurrently, a
review of the record clearly indicates that the trial judge ordered the sentences to run consecutively.
                                                         2
proof on Appellant to prove that he had no prior felony convictions. Over a specific

objection by Appellant’s counsel, the trial court submitted a charge that included an

instruction placing a burden on the defendant to prove, by a preponderance of the

evidence, his eligibility for community supervision.


        ANALYSIS

        Appellant argues error in the court’s punishment charge for instructing the jury

that he had a burden to show by a preponderance of the evidence that he had not been

previously convicted of a felony in order to be eligible for community supervision. A

defendant is eligible for community supervision if he files a written sworn motion with the

judge that he has not previously been convicted of a felony in this or any other state and

the jury enters in the verdict a finding that the information in the defendant’s motion is

true.   Art. 42.12, § 4(e).    Additionally, a defendant is not eligible for community

supervision if he is sentenced to a term of imprisonment that exceeds ten years. Id. at §

4(d)(1).


        In the underlying case, the trial court submitted to the jury verdict forms that

contained an option for community supervision. The punishment charge also included

the following paragraph which is the basis of Appellant’s complaint:


        The defendant has filed his sworn motion for [community supervision]
        herein, alleging that he had never before been convicted of a felony in this
        State or any other State. To be eligible for [community supervision] the
        defendant must establish by a preponderance of the evidence that he has
        never been convicted of a felony in this state or any other state. The term
        preponderance of the evidence means the greater weight and degree of
        credible evidence before you and admitted in this case.




                                             3
       We find that the complained of error, if any, in the court’s charge during the

punishment phase of trial to be harmless. TEX. R. APP. P. 44.2(b). The alleged error did

not have a substantial or injurious effect or influence on the jury’s verdict. Barshaw v.

State, 342 S.W.3d 91, 93 (Tex. Crim. App. 2011). This is so because the jury imposed

a sentence greater than ten years, rendering Appellant ineligible for community

supervision under any circumstances. In fact, Appellant was assessed the maximum

sentence and maximum fine allowed by law. Appellant’s sole issue is overruled.


       MODIFICATION OF JUDGMENT

       The judgment in cause number 67,275-E includes two clerical errors. First, the

summary portion of the judgment entitled Statute for Offense reflects that Appellant was

convicted of violating section 22.011(a)(2)(A) of the Texas Penal Code, criminalizing

penetration of a child’s sexual organ by any means. Based on the indictment, the

correct statute is section 22.011(a)(2)(B) which criminalizes penetration of the child

victim’s mouth. Penetration of the child victim’s sexual organ was the charge in cause

number 67,276-E.


       Second, the judgment reflects that Appellant’s twenty-year sentence and $10,000

fine in cause number 67,275-E shall run “concurrently” with his twenty-year sentence

and $10,000 fine in cause number 67,276-E.3 The record reflects that after the jury

returned its punishment verdicts, the State moved for the trial court to stack the

sentences. The motion was granted and the trial court announced the “two cases will

run consecutively.” Therefore, the provision in the judgment in cause number 67,275-E

that the “sentence shall run concurrently” is erroneous.

       3
         The judgment in cause number 67,276-E reflects the sentence shall run consecutively and shall
begin only when the judgment and sentence in cause number 67,275-E has ceased to operate.
                                                 4
      This court has the power to modify the judgment of the court below to make the

record speak the truth when we have the necessary information to do so. See Ramirez

v. State, 336 S.W.3d 846, 852 (Tex. App.—Amarillo 2011, pet. ref'd) (citing Bigley v.

State, 865 S.W.2d 26, 27-28 (Tex. Crim. App. 1993)). See also Cobb v. State, 95

S.W.3d 664, 668 (Tex. App.—Houston [1st Dist.] 2002, no pet.). Appellate courts have

the power to modify whatever the trial court could have corrected by a judgment nunc

pro tunc where the evidence necessary to correct the judgment appears in the record.

Ashberry v. State, 813 S.W.2d 526, 529 (Tex. App.—Dallas 1991, pet. ref'd). The

power to modify a judgment is “not dependent upon the request of any party, nor does it

turn on the question of whether a party has or has not objected in the trial court.” Id. at

529-30. We, therefore, modify the judgment in cause number 67,275-E to reflect the

Statute for Offense in the summary portion as “22.011(a)(2)(B)” and also to reflect the

judgments in cause number 67,275-E and 67,276-E as running consecutively.


      CONCLUSION

      As modified, the trial court’s judgments are affirmed.




                                                Patrick A. Pirtle
                                                    Justice


Do not publish.




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