Opinion issued July 16, 2019




                                     In The

                               Court of Appeals
                                    For The

                         First District of Texas
                            ————————————
                               NO. 01-18-00497-CR
                           ———————————
             CHRISTOPHER DIONE ALEXANDER, Appellant
                                       V.
                      THE STATE OF TEXAS, Appellee


                   On Appeal from the 338th District Court
                           Harris County, Texas
                       Trial Court Case No. 1558015


                         MEMORANDUM OPINION

      After appellant, Christopher Dione Alexander, without an agreed

punishment recommendation from the State, pleaded guilty to the offense of

possession of a prohibited substance in a correctional facility,1 the trial court


1
      See TEX. PENAL CODE ANN. § 38.11(d)(1).
assessed his punishment at confinement for three years. In his sole issue, appellant

contends that the trial court’s judgment of conviction for the offense of possession

of a prohibited substance in a correctional facility should be reversed and modified.

      We modify the trial court’s judgment and affirm as modified.

                                   Background

      A Harris County Grand Jury issued a true bill of indictment, alleging that

appellant, on or about July 8, 2017, “unlawfully, intentionally and knowingly

possess[ed] a controlled substance, to-wit: cocaine while in a correctional facility,

namely, Harris County Jail.” The indictment did not include any enhancement

paragraphs.

      Appellant pleaded guilty to the offense of possession of a controlled

substance in a correctional facility. His plea papers do not list any enhancement

allegations, and appellant did not plead true to the allegations in any enhancement

paragraphs.

      The trial court entered judgment against appellant for the offense of

possession of a prohibited substance in a correctional facility and sentenced

appellant, pursuant to the State’s recommendation, to confinement for three years

to run concurrently with a sentence in a separate cause.          The judgment of

conviction states that appellant entered pleas of “[t]rue” to the allegations in two

enhancement paragraphs that he had twice been previously convicted of felony


                                         2
offenses, and the trial court also found those two enhancement paragraphs to be

“[t]rue.”

                             Modification of Judgment

      In his sole issue, appellant argues that the trial court’s judgment of

conviction for the offense of possession of a prohibited substance in a correctional

facility should be reversed and modified because he did not enter a plea in regard

to any enhancement paragraphs. The State also requests that we modify and

affirm, rather than reverse, the trial court’s judgment.

      Here, the trial court’s written judgment does not accurately comport with the

record in this case in that it states that appellant pleaded “[t]rue” to the allegations

in two enhancement paragraphs and that the trial court found the allegations in

both enhancement paragraphs to be “[t]rue.” The record, however, does not reveal

that appellant entered such pleas or that the trial court made such findings.

Further, the punishment range for the offense of possession of a controlled

substance in a correctional facility is “imprisonment in the Texas Department of

Criminal Justice for a term of not more than 10 years or less than 2 years.” TEX.

PENAL CODE ANN. § 12.34(a). A plea and subsequent finding of “[t]rue” to the

allegations in two enhancement paragraphs would have increased appellant’s

punishment range to confinement for “not more than 99 years or less than 25

years.” Id. at § 12.42(d). Because the trial court assessed appellant’s punishment


                                           3
at confinement for three years, the record demonstrates that no enhancement

paragraphs were found “true” and considered in sentencing appellant in this case.

      “[A]ppellate court[s] ha[ve] the power to correct and reform a trial court

judgment ‘to make the record speak the truth when [they] ha[ve] the necessary data

and information to do so[] or make any appropriate order as the law and nature of

the case may require.’” Nolan v. State, 39 S.W.3d 697, 698 (Tex. App.—Houston

[1st Dist.] 2001, no pet.) (quoting Asberry v. State, 813 S.W.2d 526, 529 (Tex.

App.—Dallas 1991, pet ref’d)). This is true no matter who, or if anyone, has

called the matter to the attention of the appellate court. See French v. State, 830

S.W.2d 607, 609 (Tex. Crim. App. 1992); Dromgoole v. State, 470 S.W.3d 204,

226 (Tex. App.—Houston [1st Dist.] 2015, pet. ref’d); see also Asberry, 813

S.W.2d at 529–30 (“The authority of an appellate court to reform incorrect

judgments 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.”).

      Accordingly, we modify the trial court’s judgment to state “N/A” in regard

to appellant’s Plea to 1st Enhancement Paragraph and “N/A” in regard to

appellant’s Plea to 2nd Enhancement/Habitual Paragraph. We further modify the

trial court’s judgment to state “N/A” in regard to the Findings on 1st Enhancement

Paragraph and state “N/A” in regard to Findings on 2nd Enhancement/Habitual

Paragraph. See TEX. R. APP. P. 43.2(b); Bigley v. State, 865 S.W.2d 26, 27–28


                                           4
(Tex. Crim. App. 1993). Appellant has presented no basis for reversal of the trial

court’s judgment. See TEX. R. APP. P. 38.1.

      We sustain, in part, appellant’s sole issue.

                                    Conclusion

      We modify the trial court’s judgment and affirm as modified.




                                               Julie Countiss
                                               Justice

Panel consists of Chief Justice Radack and Justices Goodman and Countiss.

Do not publish. TEX. R. APP. P. 47.2(b).




                                           5
