NO. 12-22-00269-CR

IN THE COURT OF APPEALS

TWELFTH COURT OF APPEALS DISTRICT

TYLER, TEXAS

RICKEY BERNARD RUSSEAU, 

APPELLANT

V.

THE STATE OF TEXAS,

APPELLEE

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APPEAL FROM THE 7TH 

JUDICIAL DISTRICT COURT

SMITH COUNTY, TEXAS

MEMORANDUM OPINION

Appellant, Ricky Bernard Russeau, appeals from his conviction and sentencing for 

possession of a controlled substance. In one issue, Appellant argues that the judgment in this 

case is void because it omits a jury finding on one of the State’s enhancement allegations. We 

affirm as modified.

BACKGROUND

On October 21, 2021, Appellant was indicted for the offense of possession of a controlled 

substance, less than one gram. Appellant initially pleaded “not guilty,” and this matter 

proceeded to a jury trial. The jury found Appellant “guilty” of the charged offense. At the 

punishment phase, the State alleged three enhancements: (1) in 1987, Appellant was convicted of 

felony murder and the judgment of conviction contained an affirmative finding of the use and/or 

exhibition of a deadly weapon, (2) in 1978, Appellant was finally convicted of the felony offense 

of forgery, and (3) in 1982, Appellant was finally convicted of the felony offense of robbery. 

Appellant pleaded “not true” to these enhancement allegations, but the jury returned a finding of

“true” to all three and assessed punishment of life imprisonment.1 This appeal followed.

1 The charged offense is a state jail felony, punishable by a maximum of two years’ imprisonment. TEX.

HEALTH & SAFETY CODE ANN. § 481.115(a), (b) (West 2023); TEX. PENAL CODE ANN. § 12.35 (West 2023).

However, the jury’s finding of “true” regarding Appellant’s previous murder conviction elevated the punishment 
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OMISSION OF JURY FINDING FROM WRITTEN JUDGMENT

Appellant argues that because the judgment of conviction omits the jury’s finding as to 

one of three enhancements alleged by the State, it does not support the imposition of a life 

sentence and is therefore void. The State argues, in its sole counterpoint, that the jury’s verdict

as rendered supports the imposition of a life sentence, and that we have the authority to modify 

the judgment to include the jury’s findings.

An appellate court has the duty to correct and modify a trial court judgment “to make the 

record speak the truth when it has the necessary data and information to do so.” Jackson v. 

State, 288 S.W.3d 60, 64 (Tex. App.—Houston [1st Dist.] 2009, pet. ref’d) (citing Asberry v. 

State, 813 S.W.2d 526, 529 (Tex. App.—Dallas 1991, pet. ref’d)); TEX. R. APP. P. 43.2(c). Our 

authority to modify a trial court’s judgment is not restricted to the correction of clerical errors. 

Bigley v. State, 865 S.W.2d 26, 27 (Tex. Crim. App. 1993); Morris, 496 S.W.3d at 836. But the 

record must supply us with the information necessary to show both that a modification is 

warranted and the particular modification that is warranted. Van Flowers v. State, 629 S.W.3d 

707, 712 (Tex. App.—Houston [1st Dist.] 2021, no pet.). The purpose of such an order is to 

correctly reflect from the records of the court the judgment actually “rendered” but which for 

some reason was not “entered” at the proper time. Silva v. State, 989 S.W.2d 64, 66 (Tex. 

App.—San Antonio 1998, pet. ref’d). Specifically, an appellate court may reform a judgment to 

reflect an affirmative finding that was made by a jury but not entered by the trial court.

McCallum v. State, 311 S.W.3d 9, 19 (Tex. App.—San Antonio 2010, no pet.); see also Van 

Flowers, 629 S.W.3d at 711.

In this case, the trial court’s written judgment of conviction does not reflect the jury’s

finding on the third enhancement paragraph, alleging Appellant’s prior conviction for robbery. 

However, the record, particularly the punishment phase verdict form and the transcript of the

proceedings, makes clear that the jury found each of the enhancement paragraphs “true.” The 

omission of this affirmative finding from the written judgment is unrelated to judicial reasoning,

and the record provides us with the necessary proof of the findings actually rendered by the jury.

Therefore, we may reform the trial court’s judgment to “make the record speak the truth.”

range to that of a third-degree felony, and the finding of “true” regarding Appellant’s two other prior felony 

convictions elevated the available punishment range to either imprisonment for no less than 25 years and no more 

than 99 years, or life imprisonment. TEX. PENAL CODE ANN. § 12.35(c)(2), 12.42(d) (West 2023), State v. 

Kahookele, 604 S.W.3d 200, 211–12 (Tex. App.—Austin 2020), aff’d, 640 S.W.3d 221 (Tex. Crim. App. 2021).
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Jackson, 288 S.W.3d at 64. And as reformed to include all the enhancement findings, the trial 

court’s judgment supports the jury’s imposition of a life sentence in this case. Kahookele, 604 

S.W.3d at 211–12.

We overrule Appellant’s sole issue in part as to his contention that the judgment is void 

and we sustain his issue in part to the extent he seeks reformation of the judgment. We likewise

sustain the State’s counterpoint.

CONCLUSION

Having sustained Appellant’s sole issue in part and having sustained the State’s 

counterpoint, we modify the trial court’s judgment of conviction to add, below the plea and 

findings on the 2nd enhancement paragraph:

Plea to 3rd Enhancement Paragraph: Not True

Findings on 3rd Enhancement Paragraph: True

We affirm the judgment of the trial court as modified.

GREG NEELEY

Justice

Opinion delivered June 8, 2023.

Panel consisted of Worthen, C.J., Hoyle, J., and Neeley, J.

(DO NOT PUBLISH)
COURT OF APPEALS

TWELFTH COURT OF APPEALS DISTRICT OF TEXAS

JUDGMENT

JUNE 8, 2023

NO. 12-22-00269-CR

RICKEY BERNARD RUSSEAU,

Appellant

V.

THE STATE OF TEXAS,

Appellee

Appeal from the 7th District Court

of Smith County, Texas (Tr.Ct.No. 007-1778-21)

THIS CAUSE came to be heard on the appellate record and the briefs filed 

herein, and the same being considered, because it is the opinion of this court that the judgment of 

the court below should be modified and as modified, affirmed. 

 It is therefore ORDERED, ADJUDGED and DECREED that the judgment 

of the court below be modified to add below the plea and findings on the 3rd enhancement 

paragraph:

• Plea to 3rd Enhancement Paragraph: Not True

• Findings on 3rd Enhancement Paragraph: True

 In all other respects the judgment of the trial court is affirmed; and that this 

decision be certified to the court below for observance.

Greg Neeley, Justice.

Panel consisted of Worthen, C.J., Hoyle, J., and Neeley, J.