IN THE

TENTH COURT OF APPEALS

No. 10-15-00267-CR

JASON LUMLEY,

Appellant

v.

THE STATE OF TEXAS,

Appellee

From the County Court at Law

Navarro County, Texas

Trial Court No. D35606-CR

MEMORANDUM OPINION

Jason Lumley was indicted in Count 1 for evading arrest; in Count 2 for accident 

involving injury; in Count 3 for accident involving injury; and in Count 4 for 

unauthorized use of a motor vehicle. The indictment further alleged two enhancement 

paragraphs. The jury convicted Lumley on all four counts. The trial court found the 

enhancement paragraphs to be true and assessed punishment at 40 years confinement 

in Count 1; at 50 years confinement in Count 2; at 50 years confinement in Count 3; and 

at 455 days in a State Jail facility in Count 4. We affirm as modified.
Lumley v. State Page 2

Background Facts

Charles Hosack was having mechanical problems with his truck, and Lumley 

was helping with repairs on the truck. Hosack gave Lumley permission to drive the 

truck to a nearby highway to determine the problems with the truck. Lumley exceeded 

the permission given by Hosack when driving the vehicle and made one or more stops 

while driving the vehicle. Undercover officers observed Lumley’s erratic driving and 

began pursuing the vehicle. The officers attempted to stop the vehicle, but Lumley 

failed to stop. Lumley struck two vehicles while fleeing from the officers’ pursuit. 

Court Costs

In the first issue, Lumley argues that there is insufficient evidence to support the 

trial court’s order for him to pay $249 in court costs. The trial court signed and entered 

a judgment nunc pro tunc on October 9, 2015. In that judgment, the trial court ordered 

Lumley to pay $249 in court costs. Lumley argues on appeal that because the clerk’s 

record in this appeal does not contain a bill of costs, the trial court erred in entering a 

specific amount of court costs to be paid by Lumley. In Johnson v. State, the Court held 

that a specific amount of court costs need not be supported by a bill of costs in the 

appellate record for a reviewing court to conclude that the assessed court costs are 

supported by facts in the record. Johnson v. State, 423 S.W.3d 385, 395 (Tex. Crim. App. 

2014). Therefore, we find that the trial court did not err in ordering Lumley to pay $249 

in court costs.
Lumley v. State Page 3

Enhancement Paragraph

In the second issue, Lumley argues that the nunc pro tunc judgment should be 

reformed to reflect the trial court’s finding on the enhancement paragraphs in Count 4. 

In Count 4, Lumley was convicted of the offense of unauthorized use of a motor vehicle. 

The record shows that the State did not seek enhancements as to Count 4, and the trial 

court made a finding that the enhancement paragraphs did not apply to Count 4. The 

nunc pro tunc judgment indicates a plea of not true to the enhancement paragraphs and 

a finding of true on the enhancement paragraphs. The State agrees that the judgment 

should be reformed to reflect the trial court’s findings on the enhancement paragraphs 

for Count 4.

A court of appeals has the authority to correct and reform a judgment to make 

the record speak the truth when it has the information to do so. TEX. R. APP. P. 43.2(b); 

Bigley v. State, 865 S.W.2d 26, 27-28 (Tex. Crim. App. 1993). Accordingly, we sustain 

Lumley’s second issue on appeal and modify the trial court's judgment in Count 4 to 

reflect “N/A” on the plea to the enhancement paragraphs and “N/A” on the findings 

on the enhancements.

Degree of Offenses

In the third issue, Lumley argues that the nunc pro tunc judgments should be 

reformed to correctly reflect the degree of the offenses in Counts 2 and 3. In Counts 2 

and 3, Lumley was convicted of the offense of accident involving injury. TEX. TRANS.

CODE ANN. § 550. 021 (c) (2) (West Supp. 2014). The nunc pro tunc judgment reflects the 
Lumley v. State Page 4

degree of offense as “hybrid felony.” The record shows the trial court considered and 

understood the offense to be a felony of the third degree. The State agrees that the 

judgment should be reformed to reflect that the offense in each count is a third degree 

felony.

A court of appeals has the authority to correct and reform a judgment to make 

the record speak the truth when it has the information to do so. TEX. R. APP. P. 43.2(b); 

Bigley v. State, 865 S.W.2d at 27-28. Accordingly, we sustain Lumley’s third issue on 

appeal and modify the trial court's judgment to reflect that in Counts 2 and 3 the degree 

of offense is a third degree felony.

Conclusion

Based on the foregoing, we modify the trial court's judgment to reflect that 

Counts 2 and 3 are both a third degree felony. We further modify the judgment to 

reflect in Count 4 “N/A” on the plea to the enhancement paragraphs and “N/A” on the 

findings on the enhancements. We affirm the judgments as modified in all other 

respects.

AL SCOGGINS

Justice
Lumley v. State Page 5

Before Chief Justice Gray,

Justice Davis, and

Justice Scoggins

Modified and Affirmed

Opinion delivered and filed December 17, 2015

Do not publish

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