## NO. 12

- 22

- 00269

- CR

IN THE COUR T OF APPEALS

TWELFTH COURT OF APPEALS DISTRICT

TYLER, TEXAS

RICKEY BERNARD RUSSEAU , APPELLANT

V.

THE STATE OF TEXAS , APPELLEE §

§

§ AP

PEAL FROM THE 7TH

JUDICIAL DISTRICT COURT

SMITH COUNTY, TEXAS

MEMORANDUM OPINION
Appellant, R icky Bernard R usseau, appeals from hi s conviction and sentencing for
possession of a controlled substance

. In one issue, Appellant argues that the judgment in this

c ase is void because it omits a jury finding on one of the State ’ s enhancement allegation s

. We

affirm as modified

.

B ACKGROUND

On O ctober 21, 2021, Appellant was indicte d for the offense of possession of a controlled

substance , l ess than one gram

. Appellant in itially plea ded “ not guilty, ” and this matter
proceeded to a jury trial

. The jury fo und Appellant “ gu ilty ” of the charged offense. A t the
punishment phase, the S tate alleged t hree enhancements : (1 ) in 1987, Appellant was convicted of
felony murder and th e judgment of conviction contained a n aff irmative finding o f t he use and / or

e xhibition of a deadly weap on , (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 robb ery

. Appellant plead ed “ not true ” to these enhancement allegations , but the jury returned a fin ding of

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

1 The charged off

ense is a state jail felon y, pun ishable by a m aximum of two years ’ impris onment

. T EX

. H EALTH & S AFETY C ODE A NN

. § 481.115 (a) , (b) (West 2023 ) ; T EX

. P ENAL C ODE A NN

. § 12.35 (Wes t 2023 )

. However, the jury ’ s finding of “ true ” regarding Appellant ’ s previous mu rder conviction elevated the pu nishment2 O MISSION OF J URY F INDING FROM W RITTEN J U DGMENT Appellant argues that because the jud gment of conviction omits the jury ’ s finding as to

one of three e nha ncement s all eged by the State

, it does not support the imposition of a life

sentence and is therefore voi d. The State argues, in its sole count erpoint, that the jury ’ s verdict
as rendered suppor t s the imposition of a life sentence, and that we have the au thority to m odify

the judgment to include the jury ’ s findings

. A n appellate court has the duty to correct and modify a trial court judgment “to make the

rec ord speak the truth when it has the necessary data and information to do so

. ” Jackson v.

State , 288 S.W.3d 6 0, 64 (Tex. App.

— Houston [1st Dist.] 2009, pet. ref ’ d) (citing A sberry v.

State , 813 S.W.2d 526, 529 (Tex. App.

— Dallas 1991, pet. ref ’ d ) ) ; T EX

. R. A PP

. P. 43.2(c)

. Our

a uthority to modify a trial court ’ s judgment is not restricted to the correcti on of cler ic al 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 supp ly us wit h the informatio n necessary to show b oth that a modification is
warranted and the particular modification that i s warranted. Van Flowers v. State

, 629 S.W.3d

707, 71 2 (Tex. App.

— Houston [1st Dist.] 2021 , no pet. )

. The purpose of such an order is to

corre ctly reflect from the records of the co urt the judgment actually “rendered” but which for

some reason was not “e ntered” at t he proper time. Silva v. State , 989 S.W.2d 64, 66 (Tex.
App.

— San Antonio 1998 , pet. ref ’ d )

. S pecifically, an appellate court may r eform a judgment to

reflect an affirmativ e 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.

— Sa n Antonio 2010 , no pet. ) ; see a lso Van

Flowers , 629 S.W.3d at 711

. In this case, the trial cour t ’ s written judgment of conviction does no t reflect the jury ’ s finding on the third enhancement paragraph

, alleg ing Appellan t ’s p rior convic tion f or robbery

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

pro ceedings, makes clea r that the jury found each of the enhancement paragraphs “ true

. ” T he

omissio n of th is affi r mative finding from the written judgment is unrelated to judicial reasoning

, and the rec ord provides us w ith the necessary proof of the findings actually rendered by the jury

. Therefore, we may reform the trial court ’ s judgment to “ make the r ecord spea k t he trut h. ”

ran ge to that of a third

- degree f elony, and the finding of “ true ” regarding Appellant ’ s two other prior felony

con victions elevated the availab le punishment range to either imprisonment for no less than 25 ye ars and no more than 99 years, or life imprisonment

. T EX

. P ENAL C ODE A NN

. § 12.35 (c )(2)

, 12.42(d) (West 2023 )

, State v. Kahookele , 604 S.W.3d 200, 211

– 12 (Tex. Ap p.

— Austin 2020), aff ’ d , 640 S.W.3d 221 (Tex. Crim. App. 2021)

.3

Jackson , 288 S.W.3d at 64

. And as reformed to include all the e nhancement findings , the trial

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

S.W.3d at 211

– 12

. We overrule Appellant ’ s sole issu e in part a s to his contention that the judgment is void
and we sustain his issue in part to the exten t he seeks reformation of the judgment. We lik ewise

sustain the State ’ s counterpoint

.

C ONCLUSION Having sustained Appellant ’ s sole issue in part and hav i ng sustaine d the State ’ s counterpoint

, w e modify the trial court ’ s judgment of co nviction to add

, below the plea and
findings on the 2n d enhance ment paragraph :

Plea to 3rd Enhancement Paragraph: Not True
Findings on 3rd En hancement Paragraph: True

We af f i rm the judgm ent of the trial court as modified

.

G REG N EELEY Justice

Opinion deli vered June 8 , 2023. Panel consisted of Worthen, C.J., Hoyle, J ., and Neeley, J

.

( DO NOT PUBLISH )

## COURT OF APPEALS

T WELFTH COURT OF APPEALS DISTRICT OF TEXAS

JUDGMENT

JUNE 8 , 2023

NO. 12

- 22

- 00269

- CR

RICK EY 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 t o be heard o n the appel late record and the briefs filed herein, and the same being considered, because i t is the opinion of this court that the judgment of the court below should be modified and as modified, affirmed.

It is therefore ORDERED, ADJ UDGED and DE C REED that the judgm ent of the court below be modified to add below the plea and findings on the 3r d enhancement paragraph :

• Plea to 3rd Enhancement Paragraph: Not True

• Findings on 3rd En hancement Paragraph: True

I n all other respects the judgment o f the trial court is affirme d ; and that this
decision be certified to the court below for observanc e.

Greg Neeley , Justice

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