MODIFY and AFFIRM; Opinion Filed January 23, 2018.




                                              In The
                                Court of Appeals
                         Fifth District of Texas at Dallas
                                       No. 05-17-00103-CR
                                       No. 05-17-00104-CR

                              LONNIE RAY FAGAN, Appellant
                                          V.
                              THE STATE OF TEXAS, Appellee

                      On Appeal from the Criminal District Court No. 7
                                    Dallas County, Texas
                     Trial Court Cause Nos. F14-71752-Y & F14-58395-Y

                              MEMORANDUM OPINION
                           Before Justices Bridges, Myers, and Schenck
                                   Opinion by Justice Schenck
       Lonnie Ray Fagan appeals from his convictions for burglary of a habitation. In his first

issue, he urges the trial court failed to consider the full range of punishment and predetermined his

sentences. In his remaining four issues, Fagan urges this Court to modify the judgments in the two

cases. We modify the two judgments and affirm them as modified. TEX. R. APP. P. 47.4.

                                          BACKGROUND

       In trial cause number F14-58395-Y, a grand jury indicted Fagan with intentionally and

knowingly entering a habitation without the consent of the owner and there committing theft. That

same month, in cause number F14-71752-Y, a grand jury indicated Fagan with intentionally and

knowingly entering a habitation without the consent of the owner with the intent to commit theft.

In each case, Fagan pleaded guilty pursuant to a plea agreement and judicially confessed. Pursuant
to the plea agreements, the trial court deferred a finding of guilt in each case, and placed Fagan on

community supervision for a period of 5 years. The trial court assessed a $2,500 fine and $2,000

restitution in cause number F14-58395-Y, and no fine and $3,700 restitution in cause number F14-

71752-Y.

       In July and August of 2016, the State moved to proceed with an adjudication of guilt in

each case, alleging, among other violations, that Fagan had committed the offense of aggravated

assault with a deadly weapon on July 11, 2016. On January 18, 2017, the trial court conducted a

hearing on the motions to adjudicate, at which Fagan pleaded not true to the allegations and both

sides presented evidence. At the conclusion of the hearing, the trial court found the allegations to

be true. On January 27, 2017, the trial court adjudicated Fagan guilty in each case and assessed

punishment at ten years’ incarceration in each case. Fagan timely appealed both cases.

                                            DISCUSSION

I.     Did the trial court predetermine its sentence?

       In his first issue, Fagan urges that the trial judge predetermined his sentence two years

earlier, at the conclusion of the 2015 hearing, when she advised him upon deferring his

adjudication, “don’t come back in front of me, and then I got to send you to the penitentiary for

violating this probation.” Fagan argues the foregoing indicates the trial court “predetermined his

sentence of incarceration, as opposed to continuing him on probation.” The State argues Fagan

waived this issue because he failed to object to his sentences as predetermined. See TEX. R. APP.

P. 33.1. However, the State also acknowledges that prior authority is unclear whether an objection

is required to preserve a complaint about a trial court’s lack of neutrality. See Brumit v. State, 206

S.W.3d 639, 644–45 (Tex. Crim. App. 2006) (“We need not decide today whether an objection

below is required to preserve an error of this nature on appeal because the record here does not

reflect partiality of the trial court or that a predetermined sentence was imposed.”).


                                                 –2–
       To be sure, due process requires a neutral and detached hearing body or officer. See id. at

645. Absent a clear showing of bias, however, a trial court’s actions will be presumed to have

been correct. Id.

       Assuming, without deciding, Fagan’s first issue is properly before us, we conclude the trial

court’s comments do not indicate predetermined sentences were imposed. The context of the

complained of comments are as follows. On July 28, 2015, the trial court conducted a hearing at

which, in each of the two cases, Fagan pleaded guilty pursuant to a plea agreement and judicially

confessed. In each case, the trial court then accepted the pleas of guilty, deferred adjudication,

and placed Fagan on community supervision for a period of five years. At that point, the trial court

advised Fagan:

       Your family is out there. They’re counting on you. That’s why y’all are here, right.
       They’re hoping you won’t stay in trouble. They are glad you’re not going to the
       penitentiary. So they don’t come back in front of me, and then I got to send you to
       the penitentiary for violating this probation. Don’t put me or yourself in that
       position, okay.

       A careful review of the record of the 2017 hearing reveals additional evidence that the trial

court had not predetermined Fagan’s punishment and instead considered and rejected continuing

Fagan on community supervision in view of his conduct after being placed on deferred

adjudication. At the conclusion of the hearing, the trial judge found the allegations of the State’s

motion to adjudicate to be true, she openly asked, “But the next question is what’s the appropriate

sentence? What do we do here?” She further noted that Fagan had committed an additional

offense of “an aggravated assault shooting into a car” during which “[s]omebody could have gotten

killed” and stated “[t]hat’s not what probation is for.” She continued, “Probation is to rehabilitate

you so that you do better, not worse.” The trial court judge then offered Fagan the opportunity to

testify or present other evidence before she proceeded to sentencing. Fagan chose to rest on his

previous argument.


                                                –3–
       We overrule Fagan’s first issue.

II.    Should the judgments be modified?

       In his remaining four issues, Fagan contends the judgments should be reformed as follows.

In both cause numbers F14-58395-Y and F14-71752-Y, the judgment should reflect Fagan entered

pleas of not true to the State’s motions to adjudicate and that he did not enter a plea bargain or an

“open plea.” The State agrees that the judgments should be modified. The record of the January

18, 2017 hearing reflects Fagan pleaded not true to the allegations in the State’s motions to

adjudicate. The record contains plea agreements that have been marked through with the type of

plea noted as “contested.” We have the authority to modify the trial court’s judgment to make the

record speak the truth. TEX. R. APP. P. 43.2(b); French v. State, 830 S.W.2d 607, 609 (Tex. Crim.

App. 1992). Accordingly, we modify the judgment in each case as follows: (1) “Plea to Motion

to Adjudicate: Not True,” and “Terms of Plea Bargain: None.”

                                           CONCLUSION

       We affirm the trial court’s judgments as modified.




                                                   /David J. Schenck/
                                                   DAVID J. SCHENCK
                                                   JUSTICE



DO NOT PUBLISH
TEX. R. APP. P. 47

170103F.U05




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

 LONNIE RAY FAGAN, Appellant                        On Appeal from the Criminal District Court
                                                    No. 7, Dallas County, Texas
 No. 05-17-00103-CR         V.                      Trial Court Cause No. F14-58395-Y.
                                                    Opinion delivered by Justice Schenck,
 THE STATE OF TEXAS, Appellee                       Justices Bridges and Myers participating.

        Based on the Court’s opinion of this date, the judgment of the trial court is MODIFIED
as follows:
        “Plea to Motion to Adjudicate: Not True,” and “Terms of Plea Bargain: None.”

As MODIFIED, the judgment is AFFIRMED.


Judgment entered this 23rd day of January, 2018.




                                              –5–
                               Court of Appeals
                        Fifth District of Texas at Dallas
                                      JUDGMENT

 LONNIE RAY FAGAN, Appellant                        On Appeal from the Criminal District Court
                                                    No. 7, Dallas County, Texas
 No. 05-17-00104-CR         V.                      Trial Court Cause No. F14-71752-Y.
                                                    Opinion delivered by Justice Schenck,
 THE STATE OF TEXAS, Appellee                       Justices Bridges and Myers participating.

        Based on the Court’s opinion of this date, the judgment of the trial court is MODIFIED
as follows:
        “Plea to Motion to Adjudicate: Not True,” and “Terms of Plea Bargain: None.”

As MODIFIED, the judgment is AFFIRMED.


Judgment entered this 23rd day of January, 2018.




                                              –6–
