AFFIRMED as MODIFIED and Op inion Filed August 19, 2024 

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In The 

### Court of Appeals Fifth District of Texas at Dallas No. 05-23-00315-CR GERALD PIERCE, Appellant V. THE STATE OF TE XAS, Appellee On Appeal from the Criminal District Court No. 2 Dallas County, Texas Trial Court Cause No. F14-75438-I MEMORANDUM OPINION Before Justices Molberg, Pe dersen, III, and Goldstein Opinion by Justice Molberg Gerald Pierce appeals a judgment adjudi cating his guilt and sentencing him to twenty-five years’ confinement in the Te xas Department of Criminal Justice’s Institutional Division on a charge of assau lt family violence with a prior conviction, as enhanced by two prior felony convictions. 1 See T EX
. P ENAL C ODE §§ 12.42(d),

1 The indictment’s two enhan cement paragraphs alleged: And it is further presented to said Court that prior to the commission of the offense or offenses set out above, the defendant was fi nally convicted of the felony offense of POSSESSION OF A CONTROLLED SUBSTANCE, in the 195TH JUDICIAL DISTRICT COURT of DALLAS County, Texas, in Cause Number F0955574, on the 18TH day of MAY, A.D., 2010,–2– 22.01(b)(2)(A). Claiming error not in the ad judication of his guilt but instead in his sentence, Pierce argues the trial court erred in sentencing him to twenty-five years’ confinement rather than ten and argues th e judgment contains numerous errors that should be corrected. The State disputes Pierce’s argument regarding his sentence but agrees the judgment contains errors that should be corrected. Based on the record before us, we find no error in imposing th e twenty-five year sentence and find the requested corrections in the judgment to be justified. We therefore affirm the judgment as modified below in this memorandum opinion. 2
I. B ACKGROUND On April 29, 2014, a grand jury indicted Pierce for assault family violence with a prior family violence conviction, as enhanced by two prio r felony convictions.
See T EX
. P ENAL C ODE §§ 12.42(d), 22.01(b)(2)(A). On August 1, 2014, Pierce pleaded guilty to the char ge, pleaded true to the enhancement paragraphs, 3 and

And that prior to the commission of the offe nse or offenses for which the defendant was convicted as set out above, the defendant was finally convicted of the felony offense of AGGRAVATED ASSAULT, in the 204TH JUDICIAL DISTRICT COURT of DALLAS County, Texas, in Cause Number F0272696, on the 23RD day of JANUARY, A.D., 2004[.]

2 See T EX

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. P. 47.4.
3 The reporter’s record from the plea pr oceeding includes the following exchange: THE COURT: How do you plead to the charges against you, guilty or not guilty? [PIERCE]: Guilty. THE COURT: And to the enhancement count s, how do you plead, true or not true? [PIERCE]: True. After the trial court then explained the effect ofsuch a plea on his possible sentence, Pierce reconfirmed his desire to plead guilty to the charged offense and to plead true to the two enhancement paragraphs, as reflected in this exchange:–3– signed a judicial confession. 4 Judge Richard Davis, the trial judge who presided over the plea proceeding, deferred adjudica tion of guilt, found the two enhancement paragraphs to be true, placed Pierce on eight years’ community supervision, and assessed a $2,000 fine. The order of deferred adjudicati on was signed by Judge Don Adams on August 5, 2014. The order deferred adjudi cation of Pierce’s guilt, placed Pierce on a period of community supervision for eight years, and imposed a $2,000 fine plus $249 in court costs. Attached to the or der were three pages entitled “Conditions of Community Supervision” which listed twenty-one conditions of community supervision in paragraphs (a) through (u). The order of deferred adjudication did not, however, contain any information about Pierce’s plea of true to the two e nhancement paragraphs. Specifically, the order stated, in part:

Plea to 1st Enhancement N/A Plea to 2nd Enhancement N/A Paragraph Paragraph

THE COURT: So having had all of these things e xplained to you, do you still wish to enter a plea of guilty to the charge of assault family violence? [PIERCE]: Yes, Your Honor. THE COURT: And do you still wish to enter a plea of true to the enhancement paragraphs? [PIERCE]: Yes, Your Honor.
4 The judicial confession contained the full text of the offense and two enhan cement paragraphs alleged in the indictment. By signing it, Pierce judicially conf essed to the facts alleged, stipulated that they “are true and correct and constitute evidence in this case,” and judicially confessed that he “committed the offense with which [he stands] charged exactly as alleged in the indictment in this cause.”–4– Years passed. In 2019, about five y ears into Pierce’s eight-year period of community supervision, the State filed an amended motion to revoke probation or proceed with an adjudication of guilt. In its amended motion, the State alleged Pierce violated ten of his community su pervision conditions—namely, conditions (a), (a), (b), (d), (h), (j), (k), (m), (n), and (r). 5
The trial court heard the State’s am ended motion to revoke probation or proceed with an adjudication of guilt in August 2022. Judge Nancy Kennedy presided. 6 During the hearing, Pierce pleaded “not true” to the violations alleged in the State’s amended motion. Eleven witnesses testified in total. During the testimony of the sixth witnes s, the trial court announced a brief recess, and Pierce did not return to th e courtroom after the short break in proceedings. Upon the State’s request, a nd over Pierce’s counsel objection, Judge Kennedy held Pierce’s bond insufficient, dete rmined Pierce had waived his right to testify, denied Pierce’s counsel’s request to pause the proceedings, and issued a warrant for Pierce to be obt ained. The hearing continue d in Pierce’s absence, and after both sides rested and closed, Judge Kennedy found “true” the allegations in paragraphs (a), (a), (b), and (d) of the State’s amended motion. 7

5 The State’s amended motion contained two paragr aphs listed as paragraph (a). Each contained separate allegations.
6 Judge Kennedy is now a Justice on th is Court and has taken no part in the proceedings in our Court.
7 Also during the hearing on the State’s amended motion, the State abandoned its allegations in paragraphs (h), (j), (k), (m), (n), and (r).–5– After both sides indicated they had no further evidence to present for sentencing purposes, each side made a cl osing argument on sentencing. In its closing, the State noted some discrepancies in the record regarding Pierce’s plea to the enhancement paragraphs, stating that , while a check box regarding enhancement paragraphs was left unchecked on page three of Pierce’s plea paperwork, 8 there were other indications in the record that Pi erce pleaded true to the enhancement paragraphs in the indictment. In the closing by Pierce’s counsel, his co unsel appeared to agree ther e were some indications in the record that Pier ce pleaded true to the indictment’s two enhancement paragraphs, stating that while the trial court should take into account the unchecked enhancement paragraph box in the plea paperwork, “there is a notation on the docket sheet concerning th e enhancement paragraphs, so I think that’s something that the [trial] [c]ourt will have to resolve.” 9 The State argued for a prison sentence, while Pierce’s counsel asked that the court consider continuing Pierce on proba tion, with up to 180 days in jail as a

8 The trial court’s admonitions to Pierce in connection with his plea stated, in part:

9 In an August 1, 2024 entry, the docket sheet states, “Enhancement paragraphs found true on plea of true and after hearing.”–6– condition of probation, a result Pierce’s couns el described as a “better option for the [trial] [c]ourt than to sentence him to [twenty-five] years.” Judge Kennedy then stated: So the docket sheet is not part – part of the record. . . . The judgment itself from 2014 indicates that there is no finding, no plea of true, no finding of true; there’s ne ver been a request for the judgment to be modified in a nunc. There’s this proceeding be gan, and I’ve had no request prior to that to modify that judgment. So therefore, I’m operating under that previous judgment that this is a third degree that Mr. Pierce is on probation for. At this time, after finding that the allegations are true, I’m going to set aside the order that originally placed him on deferred, I’m going to find him guilty at this time of the assa ult bodily injury family violence enhanced as he pled guilty to it b ack in 2014, and I am going to sentence him to ten years in the Institutiona l Division of the Texas Department of Criminal Justice. That sentence will start today. I unde rstand that he is not present. A warrant has been issued for him. He will get credit for any back-time that he does have and I will go from there.

. . . . Any legal reason why I should not impose sentence at this time? [PIERCE’S COUNSEL]: No, Your Honor. THE COURT: It is therefore the order, judgment and decree of the Court that after finding the allegati ons remaining in the motion true, I’m setting aside the order that originally placed him on deferred finding him guilty at this time of the offense he pled guilty to and sentencing him to ten years in the Institutional Division of the Texas Department of Criminal Justice. There is an affirmative finding of family violence. Judge Kennedy then adjourned the pr oceedings but rec onvened three days later. Pierce was not present. After the trial court reviewed the circumstances during–7– the last proceeding, including Pierce’s app earance and subsequent absence, the trial court seemed at one point to rescind th e previously-announced sentence but then concluded with the following comments: THE COURT: He still has a ten-year sentence. I’m just not legally imposing it at this point because he’s not present. Right? [PROSECUTOR]: Right. [PIERCE’S COUNSEL]: Correct. On February 20, 2023, about six months after the proceedings before Judge Kennedy, the State and Pierce’s counsel ag ain appeared in the trial court for imposition of sentence. Pierce was pr esent this time, and Judge Don Adams presided. 10 During the proceeding, Pierce acknow ledged being informed that there are enhancement paragraphs which could potentially make the punishment range of twenty-five years to life. He also acknow ledged being informed that the State would give him ten years if Pierce would accept ten years and testified he was rejecting that “offer.” Judge Adams stated: I have reviewed the documents here. Apparently you pled guilty to the – you pled guilty – back on August 1, 2014, you pled guilty and also true to the enhancemen t paragraphs, and the j udge wrote on the docket sheet “finding the family violence e nhancement paragraphs that were true.” So, because of that, the Court will go ahead and pronounce the sentence of 25 years of confinement in the Institutional Division.

10 Justice Kennedy joined our Court on January 1, 2023.–8– Judge Adams then signed the judgment ad judicating guilt that is at issue in this appeal and certified Pierce’s right to appeal.
II. I SSUES AND A NALYSIS A. Alleged Error in Sentencing In his first issue, Pierce argues the trial court erred in sentencing him to twenty-five years’ confinemen t rather than ten and asks that we reform the judgment to reflect a sentence of ten years. The St ate disputes this and urges us to affirm. The trial court has wide latitude to dete rmine the appropriate sentence in each

case. Tapia v. State , 462 S.W.3d 29, 46 (Tex. Crim. App. 2015). “We cannot step into the shoes of the trial court judge a nd substitute our judgment for [his] unless that judge has clearly a bused [his] discretion.” Id . We may not disturb a trial court’s decision on an issue within its discre tion unless the decision was arbitrary or unreasonable and was outside the zone of reasonable disagreement. See State v. Hill , 499 S.W.3d 853, 865 (Tex. Crim. App. 2016); Johnson v. State , 490 S.W.3d 895, 908 (Tex. Crim. App. 2016). The crux of the parties’ disagreement regarding Pierce’s sentence has to do with whether the twenty-five year sent ence Pierce received was required by the record in this case, as the State argues, 11 or was void, as Pierce argues, because of

11 The State argues that, because the record affirmatively reflects Pierce entered a plea of true to the enhancement paragraphs, J udge Davis found the enhancement paragra phs to be true, and Judge Kennedy adjudicated Pierce guilty after finding he violated his conditions of probation, the mandatory minimum sentence authorized by statute in this case is twenty-five years imprisonment.–9– (1) the omission in the order of deferred adjudication of any information about the indictment’s two enhancement paragraphs, (2) Judge Kennedy’s announced-butnot-imposed sentence that was based on that omission, and (3) Judge Adams’ reference to the information contained in the docket sheet. We agree with the State. Penal Code § 12.42(d) requires that, except in situations not applicable here, if it is s hown on the trial of the charged felony offense that Pierce has previously been finally convicted of two felony offenses, and the second previous felony conviction is for an offense that occurred subsequent to the first previous conviction having become final, “ on conviction [Pierce] shall be punished by [TDCJ] imprisonment . . . for life, or for any term of not more than 99
years or less than 25 years .” See T EX
. P ENAL C ODE § 12.42(d) (emphasis added). 12 Here, the “conviction” occurred in conn ection with the judgment adjudicating guilt, not in the earlier order of deferred ad judication. Under th e Code of Criminal Procedure, a trial court may, “after receiving a plea of guilty or nolo contendere, hearing the evidence, and finding that it s ubstantiates the defe ndant’s guilt, defer

12 Texas Penal Code § 12.42 states, in part: (d) Except as provided by Subsection (c)(2) or (c)(4),[ ] if it is shown on the trial of a felony offense other than a state jail felony punishable under Section 12.35(a) that the defendant has previously been finally convicted of tw o felony offenses, and the second previous felony conviction is for an offense that occurre d subsequent to the first previous conviction having become final, on conviction the defe ndant shall be punished by imprisonment in the Texas Department of Criminal Justice for lif e, or for any term of not more than 99 years or less than 25 years. A previous conviction for a state jail felony punishable under Section 12.35(a) may not be used for enhan cement purposes under this subsection.”
T EX

. P ENAL C ODE § 12.42(d).–10– further proceedings without entering an ad judication of guilt and place the defendant on deferred adjudication co mmunity supervision.” T EX
. C ODE C RIM
. P ROC . art. 42A.101(a). “For most purposes, a defe rred adjudication does not count as a conviction” because a convic tion generally involves the ad judication of guilt, which is specifically deferred when a cour t orders deferred adjudication. Middleton v.
State , 634 S.W.3d 46, 50 (Tex. Crim. App. 2021). Based on the record before us, it is und isputed Pierce pleaded true to the two enhancement paragraphs and J udge Davis found those paragr aphs to be true. Thus, when the trial court later adjudicated Pi erce’s guilt, the mandatory operation of section 12.42(d) restricted the trial cour t’s discretion in sent encing and required a minimum sentence of twenty-five years. See T EX
. P ENAL C ODE § 12.42(d); State v. Allen , 865 S.W.2d 472, 474 (Tex. Crim. App. 1993) (”Once the two prior felony convictions are found to be true, the mandatory operation of Section 12.42(d) restricts the discretion of the sentencing authority.”). We are not persuaded by Pierce’s argum ent that the enhancement-related omissions in the order of deferred adj udication make Pierce’s twenty-five year sentence void because his argument ignores the distinction between an order of deferred adjudication and a judgment. While Pierce’s premise—that a judgment controls over other portions of the reco rd such as the docket sheet—is largely–11– correct, 13 his application of that premise to th is case is misplaced, as it equates an order of deferred adjudication with a judgm ent, and the two documents are not the

same. See Zapata v. State , 678 S.W.3d 325, 328 (Tex. App.—San Antonio 2023, pet. granted) (noting that an adjudicatio n of guilt is specifically deferred when a court orders deferred adjudication and concluding that the order of deferred adjudication in that case was not a judgment that required the trial court to enter an affirmative finding of family violence). Based on the record before us and the authorities cite d above, we cannot conclude the trial court erred in impos ing the twenty-five year sentence. We overrule Pierce’s first issue. B. Alleged Errors in Judgment In his second issue, Pierce argues th e judgment adjudicating guilt contains numerous errors that should be corrected . Specifically, he argues the judgment should be corrected to reflect that (1) Pier ce pleaded “not true” to the allegations in the State’s amended motion to adjudicate; (2) there was no plea bargain in the adjudication process; and (3) the trial court only found “true” the allegations in parts (a), (a), (b), and (d) of the Stat e’s amended motion to adjudicate. The State agrees with Pi erce’s arguments as to numbers (1) and (3) and has not disputed or responded to his argument regarding number (2). The State also

13 See Flores v. State , 524 S.W.2d 71, 72 (Tex. Crim. App. 1978) (“[T]he judgment controls over recitations made on the court’s docket when there is a conflict between them.”).–12– argues two other modifications are needed , namely, by adding that the trial court found true the two enhancemen t paragraphs alleged in th e indictment, and by adding an affirmative finding of family violence. Pierce did not file a reply to the State’s brief and has take n no position with regard to the State’s requested modifications, aside from his arguments in connection with his first issue. We may modify the trial court’s judgmen t to make the record speak the truth when we have the necessary information to do so. T EX
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. 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) (e n banc). The record before us reveals that all five of the parties’ requested modifications are appropriate. As to Pier ce’s three requested ch anges, the reporter’s record shows Pierce pleaded “not true” to the allegations made in the State’s amended motion to adjudicate, there was no plea bargain in the adjudication process, and the trial court only found “true” the allega tions in parts (a), (a ), (b), and (d) of the State’s amended motion to adjudicate. As to the State’s two requested changes, the reporter’s record also shows that during the proceeding on the State’s amended motion to adjudicate guilt, the trial court t ook judicial notice of the entire contents of the file, which included the April 29, 2014 indictment that included two enhancement paragraphs and Pierce’s August 1, 2014 judicial confession, in which he confessed he “committed the offense w ith which I stand charged exactly as alleged in the indictment in this cause.” Finally, the reporter’s record includes the–13– transcript from the hearing on the State’s amended motion to adjudicate guilt, and in it, the trial court made an a ffirmative finding of family violence. Thus, we sustain Pierce’s second issue to the extent that we reform the judgment as described below.
III. C ONCLUSION For the reasons explained above, we reform the judgment by making the following modifications: (1) Under the text stating “Plea to Motion to Adjudicate,” we delete the word “TRUE” and replace it with the phrase “NOT TRUE,” (2) Under the text stating “Terms of Plea Bargain,” we delete the phrase “25 YEARS TDC” and replace it with “N/A,” (3) After the text stating “Defen dant violated the conditions of community supervision, as set out in the State’s AMENDED Motion to Adjudicate Guilt, as follows” we dele te the text stating “A A B D H J K M N R” and replace it with text stating “A A B D,” (4) In the last paragraph of the firs t page of the judgment, we delete the text stating, “(2) The Court de ferred further proc eedings, made no finding of guilt, and rendered no ju dgment” and replace it with text stating, “(2) The Court found “true” the two enhancem ents paragraphs alleged in the indictment, defe rred further proceedings, made no finding of guilt, and re ndered no judgment;” and (5) Adding on page 2 of the j udgment, after the text stating “Furthermore, the following special findings or orders apply,” text stating, “The Court affirmatively fi nds that the offense involved family violence, as defined by Sec tion 71.004, Family Code.” As reformed, we affirm the judgment.

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Court of Appeals Fifth District of Texas at Dallas JUDGMENT GERALD PIERCE, Appellant
No. 05-23-00315-CR V. THE STATE OF TEXAS, Appellee On Appeal from the Criminal District Court No. 2, Dall as County, Texas Trial Court Cause No. F14-75438-I. Opinion delivered by Justice Molberg. Justices Pedersen, III and Goldstein participating. Based on the Court’s opinion of this da te, the judgment of the trial court is MODIFIED as follows: (1) Under the text stating “Plea to Motion to Adjudicate,” we delete the word “TRUE” and replace it with the phrase “NOT TRUE,” (2) Under the text stating “Terms of Plea Bargain,” we delete the phrase “25 YEARS TDC” and replace it with “N/A,” (3) After the text stating “Defen dant violated the conditions of community supervision, as set out in the State’s AMENDED Motion to Adjudicate Guilt, as follows” we dele te the text stating “A A B D H J K M N R” and replace it with text stating “A A B D,” (4) In the last paragraph of the firs t page of the judgment, we delete the text stating, “(2) The Court de ferred further proc eedings, made no finding of guilt, and rendered no ju dgment” and replace it with text stating, “(2) The Court found “true” the two enhancem ents paragraphs alleged in the indictment, defe rred further proceedings, made no finding of guilt, and rende red no judgment;” and (5) Adding on page 2 of the j udgment, after the text stating “Furthermore, the following special findings or orders apply,” text–15– stating, “The Court affirmatively fi nds that the offense involved family violence, as defined by Sec tion 71.004, Family Code.” As REFORMED , the judgment is AFFIRMED

. Judgment entered this 19th day of August, 2024.