Opinion
No. 05-16-00862-CR
08-09-2017
TERRELL TRJVAR LOCKRIDGE, Appellant v. THE STATE OF TEXAS, Appellee
On Appeal from the 265th Judicial District Court Dallas County, Texas
Trial Court Cause No. F14-58426-R
MEMORANDUM OPINION
Before Justices Evans, Stoddart, and Boatright
Opinion by Justice Evans
Terrell Trjvar Lockridge appeals the trial court's deadly weapon finding in the judgment entered after revocation of his deferred adjudication. Citing cases involving revocations of straight probation, he asserts a deadly weapon finding cannot be made for the first time in a judgment adjudicating guilt. We conclude that the authorities on which appellant relies do not apply to deadly weapon findings in a judgment entered after revoking deferred adjudication. We therefore affirm the trial court's judgment.
The Texas Court of Criminal Appeals refers to community supervision after judgment as "straight probation" to "distinguish [it] from [a situation] in which a defendant receives community supervision through a deferred adjudication." Yazdchi v. State, 428 S.W.3d 831, 834 n.1 (Tex. Crim. App. 2014). In the same opinion, the court referred to deferred adjudication community supervision as deferred adjudication. Id. at 838. We will use the same terminology to distinguish cases deciding that a deadly weapon finding cannot be made in an order revoking straight probation from cases deciding that a deadly weapon finding can be made in a judgment entered immediately after revoking deferred adjudication.
BACKGROUND
Appellant was indicted for possessing with intent to deliver four or more but less than 200 grams of cocaine on September 9, 2014 enhanced by his use or exhibition of a deadly weapon, a firearm, during the offense or as a party to the offense knowing a deadly weapon would be used or exhibited. On April 28, 2015, appellant signed a judicial confession to the exact words of the indictment. The same day he signed a plea agreement that included, "Affirmative finding of deadly weapon: [X] YES" and "Type of Weapon: Firearm." He further agreed to five years' deferred community supervision and a $3000 fine.
Before appellant testified at his plea hearing, the trial court confirmed with appellant that he voluntarily signed the confession and plea agreement and that he understood he waived important rights. Then the trial court announced, "Plea bargain is you not be found guilty and no affirmative finding of deadly weapon made today. 5 years deferred adjudication probation. $3,000 fine. I'll approve the plea bargain." Appellant again confirmed to the trial court that he plead guilty and true to the deadly weapon.
Appellant then testified regarding the circumstances of the offense and arrest, including the presence of guns and drugs. At the conclusion of appellant's testimony, the trial court accepted the plea agreement and announced he placed appellant on "deferred adjudication probation" and also probated the fine. The trial court made no mention about a deadly weapon at the end of the hearing. The unsigned docket notation for that date includes, "DW defers." That same day, the trial court entered an order of deferred adjudication that conformed to the signed plea agreement in all particulars including, "Findings on Deadly Weapon: YES, A FIREARM."
On August 6, 2015, the State filed a Motion to Revoke Probation or Proceed with an Adjudication of Guilt ("Motion"). On August 11, 2015, the State withdrew its Motion and the trial court entered an order modifying the conditions of probation. On May 31, 2016, the State filed its second Motion alleging that appellant violated five conditions of probation. On July 8, 2016, appellant signed a judicial confession and stipulation of evidence to violating those five grounds of probation, including having committed an assault. The plea was open to the court. A different trial judge presided over the revocation and adjudication hearing than had presided over the deferred adjudication hearing. The complaining witness in the assault case testified to appellant's assault of her and her sister. Appellant testified and admitted the assault, including stomping the complaining witness's face, and admitted other offenses. He also testified that he had complied with many conditions of probation. At the conclusion of the hearing, the trial court found appellant violated the terms of probation and granted the Motion, setting punishment at ten years' confinement. The trial court continued its rendition stating, "There's an affirmative finding of a deadly weapon to-wit: a firearm." The trial court's judgment adjudicating guilt signed the same day conformed to those announcements, including, "Findings on Deadly Weapon: YES, A FIREARM."
Appellant timely brought this appeal.
ANALYSIS
Both of appellant's issues are based on his argument that the deadly weapon finding in the order granting deferred adjudication was a mistake and was precluded by the trial court's announcement at the beginning of the deferred adjudication hearing, "Plea bargain is you not be found guilty and no affirmative finding of deadly weapon made today." Appellant points out the unsigned docket notation, "DW defers," corroborates the trial court's oral statement at the beginning of the deferred adjudication hearing that the rendition was that there would be no deadly weapon finding.
In his first issue, appellant argues that we should modify the judgment adjudicating guilt to delete the deadly weapon finding. Appellant arrives at that conclusion by arguing the trial court's oral statement at the deferred adjudication hearing, "no affirmative finding of deadly weapon made today," supercedes the written deadly weapon finding in the deferred adjudication order. Appellant further argues that without a deadly weapon finding in the deferred adjudication order, the trial court may not make a deadly weapon finding in the final judgment adjudicating guilt. In his second issue, appellant alternatively argues that he was deprived of due process because the judge presiding over the revocation and adjudication hearing was misled by the deadly weapon finding in the order granting deferred adjudication.
Appellant cannot succeed on his first issue because the inclusion or omission of a deadly weapon finding is not applicable to an order of deferred adjudication. See Sampson v. State, 983 S.W.2d 842, 843 (Tex. App.—Houston [1st Dist.] 1998, pet. ref'd). In Sampson, the trial court checked "N/A" regarding a deadly weapon finding in the deferred adjudication order but included a deadly weapon finding in the subsequent judgment. Id. The court of appeals affirmed the trial court's judgment reasoning the purpose for a deadly weapon finding in a judgment is for the Department of Criminal Justice to properly calculate a prisoner's parole-eligibility date. Id. "An affirmative finding of a deadly weapon is not applicable to an order of deferred adjudication because parole eligibility only applies to persons who are imprisoned." Id.; see also Johnson v. State, No. 05-00-00464-CR, 2002 WL 1788002 (Tex. App.—Dallas Aug. 5, 2002, no pet.) (not designated for publication) (op. on remand) (where trial court announced at deferred adjudication hearing that no deadly weapon was used but included deadly weapon finding in written deferred adjudication order and in later judgment, court of appeals followed Sampson and affirmed judgment). But when a trial court revokes deferred adjudication community supervision and adjudicates guilt, the judgment must contain the finding whether there was a deadly weapon. See TEX. CODE CRIM. PROC. ANN. art. 42.12, § 3g(a)(2) (West Supp. 2016); Sampson, 983 S.W.2d at 844; Johnson, 2002 WL 1788002, at *3.
Appellant cites Ex parte Shaw, 724 S.W.2d 75, 76 (Tex. Crim. App. 1987) and Rivers v. State, 99 S.W.3d 659, 660 (Tex. App.—Waco 2003, no pet.) for the proposition that once a written deferred adjudication order is properly modified to delete the deadly weapon finding, the subsequent judgment revoking probation and adjudicating guilt cannot contain a deadly weapon finding. Shaw and Rivers, however, both pertain to straight probation. In Shaw, the trial court signed a judgment of conviction with imposition of sentence suspended for probation, then later signed an order revoking probation and sentencing the appellant to a term of years in confinement. Shaw, 724 S.W.2d at 76. Likewise, in Rivers, the trial court's judgment of conviction suspended the appellant's ten year sentence and placed him on probation. Rivers, 99 S.W.3d at 660. The appellant's probation was subsequently revoked. Id . The judgments in both cases did not contain a deadly weapon finding; rather the finding was in the separate and subsequent order revoking probation. Shaw, 724 S.W.2d at 76; Rivers, 99 S.W.3d at 660. Both courts reasoned that because the judgments did not contain the required deadly weapon finding, the trial courts were without authority to add a deadly weapon finding into the order revoking straight probation. Shaw, 724 S.W.2d at 76; Rivers, 99 S.W.3d at 660; see TEX. CODE CRIM. PROC. ANN. art. 42.12, § 3g(a)(2).
Shaw and Rivers are entirely distinguishable. Unlike the case before us, the judgments in Shaw and Rivers did not contain deadly weapon findings, and were appeals from subsequent orders revoking straight probation where a deadly weapon finding was made for the first time. Here, appellant's judgment with the deadly weapon finding was signed after the deferred adjudication order and, as discussed above, there is no reason for a deferred adjudication order to contain a deadly weapon finding. Accordingly, we follow Sampson, not Shaw and Rivers. We overrule appellant's first issue.
In his second issue, appellant argues he was deprived of due process because when the judge made a deadly weapon finding in the judgment after presiding over the revocation and adjudication hearing, she was misled by the erroneous deadly weapon finding in the order granting deferred adjudication. Appellant requests that we remand for a new sentencing hearing so the trial court can sentence him with the correct understanding that it is not bound by the deferred adjudication order. Appellant did not preserve his complaint for review because he failed to object to the deadly weapon finding. Even if we assume for this issue that the written deferred adjudication order varied from the trial court's rendition, the record does not support appellant's argument that the judge presiding at the revocation and adjudication hearing had any factual or legal misunderstanding.
The only two statements about a deadly weapon in the record of the revocation and adjudication hearing were made by the trial court. First, the trial court introduced the hearing asking appellant if he recalled, "you pled guilty to a first-degree drug case with a deadly weapon, and you were placed on five-years deferred probation." At the conclusion of the hearing the trial court's entire rendition was:
I find that you are competent to enter your plea. That your plea was freely and voluntarily given. I'm going to accept it. I'm going to find that you did violate your probation as set out in the State's motion. I'm going to grant their motion and set your punishment at 10 years in the Texas Department of Criminal Justice.The trial court's introduction does not indicate what she reviewed before making the summary of prior proceedings. Whether she reviewed appellant's signed confession, his signed plea agreement, or the deferred adjudication order, each contained a deadly weapon finding.
There's an affirmative finding of a deadly weapon to-wit: a firearm.
Good luck to you, sir.
Similarly, nothing about the trial court's rendition at the end of the hearing indicates it was anything other than a pronouncement including all the elements necessary for a sentence that would be contained in a written judgment. Appellant points to nothing in the record that supports his contention that the trial court misunderstood that notwithstanding the content of the deferred adjudication order she had discretion whether or not to make a deadly weapon finding in the judgment. Accordingly, we overrule appellant's second issue.
Having overruled both of appellant's issues, we affirm the judgment of the trial court including the deadly weapon finding.
/David W. Evans/
DAVID EVANS
JUSTICE Do Not Publish
TEX. R. APP. P. 47
160862F.U05
JUDGMENT
On Appeal from the 265th Judicial District Court, Dallas County, Texas
Trial Court Cause No. F14-58426-R.
Opinion delivered by Justice Evans, Justices Stoddart and Boatright participating.
Based on the Court's opinion of this date, the judgment of the trial court is AFFIRMED. Judgment entered this 9th day of August, 2017.