Affirm and Opinion Filed May 20, 2022

In The 

### Court of Appeals Fifth District of Texas at Dallas No. 05
- 20
- 00010
- CR QUANTARA LANEESE MELTON , Appellant

V. THE STATE OF TEXAS , Appellee On Appeal from the 203rd Judicial District Court

Dallas County, Texas Trial Court Cause No. F18
- 76488
- P MEMORANDUM OPINION Before Justices Osborne, Pedersen, III, and Nowell Opinion by Justice Pedersen, III A jury found appellant Quantara Lanese Melton guilty of murder and assessed her punishment at fifty

- two years’ confinement and a $5,000 fine . In a single issue, appellant argues that the trial court improperly instructed the jury regarding parole eligibility in the punishment charge . In a cros s - issue, the State asks us to modify the judgment in this case to correct a number of clerical errors. As modified, we affirm the trial court’s judgment.– 2

– Background Appellant was charged with murder. Her indictment alleged that the complainant died after s he push ed him into oncoming traffic , causing him to be struck by

— and run over by

— a motor vehicle . The jury found her guilty. Before closing arguments were made in the punishment phase of her trial, the trial court held a charge conference on the record. Af ter reviewing the court’s proposed charge, counsel for appellant objected to the series of instruction s concerning parole , stating that having language about parole in the charge would

“ give [jurors] reason to talk about it because it’ s in there, even thou gh they say they ’ re not supposed to talk about it. ” Counsel then went through the entire parole set of instructions, paragraph by paragraph, objecting that including these instructions allowed jurors to take “good time” into consideration in determining
their sentence and allowed them to consider that the length of time appellant might be imprisoned could be reduced by an award of parole. Counsel concluded the objection stating: “ So all of this stuff pertaining to parole, since they’ re instru cted not to consider parole, we ask that, that be taken out. ” The trial court agreed to remove two sections of the parole

- related instructions but refused to delete others

. Neither attorney objected to th e modified form of the
instruction as it was submitt ed

.– 3

–

The jury found appellant guilty, found an enhancement paragraph true, and assessed appellant’s punishment at fifty

- two years’ confinement and a $5,000 fine. This appeal followed. Parole Instructions In a single issue , appellant contends that t he trial court improperly instructed the jury regarding parole eligibility in the punishment charge. She argues that t he trial court failed to instruct the jury as mandated by article 37.07, section 4(a) of the code of criminal procedure and that she was egregiousl y harmed by that failure. 1
A ppellate resolution of a jury

- charge issue begins with a determination of whether error exists. Kirsch v. State , 357 S.W.3d 645, 649 (Tex. Crim. App. 2012). In this case, the State agrees with appellant that the parole instruct ion submitted by the trial court was incorrect. The legislature has mandated a n instruction that must be submitted in a murder case in which punishment is to be assessed by the jury.
T EX
. C ODE C RIM
. P ROC
. A NN . art. 37.07, § 4(a) (requiring instruction if charged offense is “listed in Article 42A.054(a),” which imposes limitation on judge

- ordered community supervision, inter alia , in murder case). The statute requires the court to charge the jury in writing usi ng the specific statutory language. Id. ; Luquis v. State ,

1 Appellant also asserts : “ The jury was instructed that Melton would be eligible for parole after serving one - fourth of her sentence. That is incorrect. Melton will not be eligible for parole until she has served one

half of her sentence. ” We do not address this issue because appellant did not raise it below. Delgado v. State , 635 S.W.3d 730, 749 (Tex. App.

— Dallas 2021, pet. ref’d) (objections not made at trial are not prese rved for our review).– 4

–

72 S.W.3d 355, 363 (Tex. Crim. App. 2002) (“ Article 37.07, section 4(a) sets out, verbatim, the words that the trial judge is to use. ”). We agree with the parties,
therefore , that the trial court er red when it modified the instruction set forth in article 37.07, section 4(a). Ordinarily, we would proceed from that conclusion to determine whether the error caused sufficient harm to warrant reversal. Price v. State , 457 S.W.3d 437, 440 (Tex. Crim. App . 2015)

. In this case, however, the trial court’s error was invited by appellant’s objection to the court’s initial instruction . The court modified its parole instruction at appellant’s request , and “ the law of invited error estops a party from making an a ppellate error of an action it induced. ” See Prystash v. State , 3 S.W.3d 522, 531 (Tex. Crim. App. 1999). This estoppel rule has been applied to improper submissions in jury charges at the punishment stage, see id. , and its application is appropriate in th is case. We conclude that appellant may not argue on appeal that the trial court was required to give the legislatively mandated instruction when she objected to submission of any parole instruction at all and the trial court modified its
instruction in an effort to address her objection. See Druery v. State , 225 S.W.3d 491, 506 (Tex. Crim. App. 2007) (appellant estopped from arguing trial judge had duty to give jury instruction on lesser

- included offense when appellant specifically requested charge not be submitted).– 5

–

Because appellant is estopped from bringing this charge

- error claim on appeal, we do not address whether the erroneous charge caused her any harm. See id. We overrule appellant’s single issue. Modification of the Judgment
In its cross

- issue, the State asks us to make the following modifications in the trial court’s judgment: (1) to refle ct the jury’s de facto finding that a deadly weapon was used during the murder , (2) to reflect the correct criminal act , (3) to reflect

a ppellant’s plea of “ not gu ilty” to the charged offense, and (4) to reflect a ppellant’s plea of “ not true ” to the enhanc ement paragraph contained in the indictment. 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. T EX
. R. A PP
. P

. 43.2(b); Bigley v. State , 865 S.W.2d 26, 27

– 28 (Tex. Crim. App. 1993); Asberry v. State, 813 S.W.2d 526, 529

– 30 (Tex. App.

— Dallas 1991, pet. ref’d).

De Facto Deadly Weapon Finding The State asks us first to modify the trial court’s judgment to add the jury’s de facto finding that appellant used a deadly weapon in commission of her offense. When the jury makes an affirmative deadly weapon finding, the trial court has a mandatory duty to enter that finding in the written judgment. Ex parte Poe , 751 S.W.2d 873, 876 (Tex. Crim. App. 1988). “ The trial judge retain [s] no discretion to do otherwise. ” Id. Therefore, a trial court’s failure to comply with this mandatory duty is a clerical error , which can be corrected by a nunc pro tunc judgment

. See id.– 6

–

Appellate courts have the power to reform any matter the trial court could have corrected by a nunc pro tunc judgment as long as the evidence necessary to correct the judgment appears in the record. Asberry , 813 S.W.2d at 529

. A jury can make a n affirmati ve deadly weapon finding in any of three ways: (1) by a finding of guilty “as charged in the indictment” when the indictment specifically characterizes the weapon used as “a deadly weapon”; (2) by a finding of guilty “as charged in the indictment” when the weapon named in the indictment is a deadly weapon as a matter of law; and (3) by an affirmative finding to a special issue submitted to the jury on whether the weapon used by the defendant was a deadly weapon. Id. In this case, the jur y found appellant guilty as charged in the indictment , 2 and the
indictment characterized the motor vehicle as a deadly weapon. 3 Accordingly, we conclude that the jury made a de facto af firmative deadly weapon finding and we may modify the trial court’s j udgment to include that finding. See id. ; see also Carter
v. State , No. 05

- 14

- 00822

- CR, 2016 WL 4044922, at *3 (Tex. App.

— Dallas July 26, 2016, no pet.) (mem. op., not designated for publication)

.

2 The verdict states: “ We, the Jury, find the defendant, QUANTARA LANEESE MELTON, guilty of Murde r as charged in the indictment.”

3 For both theories of murder, the indictment stated tha t appellant’s act caused the complainant’ s injury: by CAUSING BLUNT FORCE TRAUMA TO THE DECEASED BY PUSHING THE DECEASED INTO ONCOMING TRAFFIC CAUSING THE DECEASED TO BE STRUCK BY AND RUN OVER BY A MOTOR VEHICLE, a deadly weapon.– 7

–

We delete the portion of the trial court’ s judgment that s tates “N/A” under the heading “Findings on Deadly Weapon,” and we add the words “YES, A MOTOR
VEHICLE ” under that heading.

Erro neous Statements in the Judgment The State also points out three erroneous statements in the judgment. The judgment wrongly identifies section 19.02(a)(1) of the Penal Code as appellant’s statutory offense; it should identify section 19.02(b), which sets forth the acts that constitute murder. The judgment also wrongly states that appellant pleaded “GUILTY” to the murder charge; it should state “NOT GUILTY.” And finally, the judgment wrongly states that appellant pleaded “TRUE” to the enhancement paragraph, but she pleaded “NOT TRUE.” We agree that each of those errors should be corrected in the judgment. We sustain the S tate’s cross

- issue and modify the trial court’s judgment accordingly. Conclusion As modified, we affirm the trial court’s judgment.

2 00010f.u05 Do Not Publish T EX
. R. A PP
. P . 47 /Bill Pedersen, III/ / BILL PEDERSEN, III JUSTICE– 8

– 

### Court of Appeals Fifth District of Texas at Dallas

JUDGMENT
QUANTARA LANEESE MELTON, Appellant
No. 05

- 20

- 00010

- CR V. THE STATE OF TEXAS, Appellee On Appeal from the 203rd Judicial District Court, Dallas County, Texas Trial Court Cause No. F

- 1876488

- P. Opinion delivered by Justice Pedersen, III. Justices Osborne and Nowell participating. Based on the Court’s opinion of this date, the judgment of the trial court is MODIFIED as follows: We delete the portion of the trial court’s judgment that states “N/A” under the heading “Findings on Deadly Weapon,” and we add the words “YES, A MOTOR VEHI CLE” under that heading. We delete the portion of the judgment that states “ 19.02 (A)(l) Penal Code ” under the heading “Statute for Offense,” and we add the words “19.02(b) Penal Code” under that heading.
We delete the word “GUILTY” under the heading “P lea to Offense,” and we replace it with the words “NOT GUILTY.” We delete the words “ PLEADED TRUE” under the heading “1 st Enhancement Paragraph,” and we replace them with the words

“ PLEADED NOT TRUE.”
As MODIFIED , the judgment is AFFIRMED

. Judgment ent ered this 20 th day of May , 2022

.