AFFIRMED as MODIFIED and Opinion Filed August 19, 2024 

S 

In The 

Court of Appeals 

Fifth District of Texas at Dallas 

No. 05-23-00315-CR 

GERALD PIERCE, Appellant 

V. 

THE STATE OF TEXAS, 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, Pedersen, III, and Goldstein 

Opinion by Justice Molberg 

Gerald Pierce appeals a judgment adjudicating his guilt and sentencing him to 

twenty-five years’ confinement in the Texas Department of Criminal Justice’s 

Institutional Division on a charge of assault family violence with a prior conviction, 

as enhanced by two prior felony convictions.1

 See TEX. PENAL CODE §§ 12.42(d), 

1

 The indictment’s two enhancement 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 finally 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, 
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22.01(b)(2)(A). Claiming error not in the adjudication 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 the 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 the 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. BACKGROUND

On April 29, 2014, a grand jury indicted Pierce for assault family violence 

with a prior family violence conviction, as enhanced by two prior felony convictions. 

See TEX. PENAL CODE §§ 12.42(d), 22.01(b)(2)(A). On August 1, 2014, Pierce 

pleaded guilty to the charge, pleaded true to the enhancement paragraphs,3

 and 

And that prior to the commission of the offense 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 TEX. R. APP. P. 47.4. 

3

 The reporter’s record from the plea proceeding 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 counts, how do you plead, true or not true? 

[PIERCE]: True. 

After the trial court then explained the effect of such 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: 
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signed a judicial confession.4

 Judge Richard Davis, the trial judge who presided 

over the plea proceeding, deferred adjudication 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 adjudication was signed by Judge Don Adams on 

August 5, 2014. The order deferred adjudication 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 order 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 enhancement 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 explained 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 enhancement paragraphs alleged 

in the indictment. By signing it, Pierce judicially confessed 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.” 
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Years passed. In 2019, about five years 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 supervision conditions—namely, conditions 

(a), (a), (b), (d), (h), (j), (k), (m), (n), and (r).5

 

The trial court heard the State’s amended 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 witness, the trial court announced a brief 

recess, and Pierce did not return to the courtroom after the short break in 

proceedings. Upon the State’s request, and over Pierce’s counsel objection, Judge 

Kennedy held Pierce’s bond insufficient, determined 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 obtained. The hearing continued 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 paragraphs listed as paragraph (a). Each contained 

separate allegations. 

6

 Judge Kennedy is now a Justice on this 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 closing 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 Pierce pleaded true to the enhancement 

paragraphs in the indictment. 

In the closing by Pierce’s counsel, his counsel appeared to agree there were 

some indications in the record that Pierce 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 the 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 probation, 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 counsel 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 never been a request for the judgment 

to be modified in a nunc. There’s this proceeding began, 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 assault bodily injury family violence 

enhanced as he pled guilty to it back in 2014, and I am going to sentence 

him to ten years in the Institutional Division of the Texas Department 

of Criminal Justice. 

That sentence will start today. I understand 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 allegations 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 proceedings but reconvened three days 

later. Pierce was not present. After the trial court reviewed the circumstances during 
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the last proceeding, including Pierce’s appearance and subsequent absence, the trial 

court seemed at one point to rescind the 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 again appeared in the trial court for 

imposition of sentence. Pierce was present this time, and Judge Don Adams 

presided.10 During the proceeding, Pierce acknowledged being informed that there 

are enhancement paragraphs which could potentially make the punishment range of 

twenty-five years to life. He also acknowledged 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 enhancement paragraphs, and the judge wrote on the docket 

sheet “finding the family violence enhancement 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 adjudicating guilt that is at issue in 

this appeal and certified Pierce’s right to appeal. 

II. ISSUES AND ANALYSIS

A. Alleged Error in Sentencing 

In his first issue, Pierce argues the trial court erred in sentencing him to 

twenty-five years’ confinement rather than ten and asks that we reform the judgment 

to reflect a sentence of ten years. The State disputes this and urges us to affirm. 

The trial court has wide latitude to determine 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 and substitute our judgment for [his] unless 

that judge has clearly abused [his] discretion.” Id. We may not disturb a trial court’s 

decision on an issue within its discretion 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 sentence 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, Judge Davis found the enhancement paragraphs 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. 
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(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 shown 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 TEX. PENAL CODE § 12.42(d) (emphasis added).12 

Here, the “conviction” occurred in connection with the judgment adjudicating 

guilt, not in the earlier order of deferred adjudication. Under the Code of Criminal 

Procedure, a trial court may, “after receiving a plea of guilty or nolo contendere, 

hearing the evidence, and finding that it substantiates the defendant’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 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 the defendant shall be punished by imprisonment in 

the Texas Department of Criminal Justice for life, 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 enhancement purposes under this subsection.” 

TEX. PENAL CODE § 12.42(d). 
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further proceedings without entering an adjudication of guilt and place the defendant 

on deferred adjudication community supervision.” TEX. CODE CRIM. PROC. art. 

42A.101(a). “For most purposes, a deferred adjudication does not count as a 

conviction” because a conviction generally involves the adjudication of guilt, which 

is specifically deferred when a court orders deferred adjudication. Middleton v. 

State, 634 S.W.3d 46, 50 (Tex. Crim. App. 2021). 

Based on the record before us, it is undisputed Pierce pleaded true to the two 

enhancement paragraphs and Judge Davis found those paragraphs to be true. Thus, 

when the trial court later adjudicated Pierce’s guilt, the mandatory operation of 

section 12.42(d) restricted the trial court’s discretion in sentencing and required a 

minimum sentence of twenty-five years. See TEX. PENAL CODE § 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 argument that the enhancement-related 

omissions in the order of deferred adjudication 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 record such as the docket sheet—is largely 
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correct,13 his application of that premise to this case is misplaced, as it equates an 

order of deferred adjudication with a judgment, 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 adjudication 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 cited above, we cannot 

conclude the trial court erred in imposing the twenty-five year sentence. 

We overrule Pierce’s first issue. 

B. Alleged Errors in Judgment 

In his second issue, Pierce argues the judgment adjudicating guilt contains 

numerous errors that should be corrected. Specifically, he argues the judgment 

should be corrected to reflect that (1) Pierce 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 State’s amended motion to adjudicate. 

The State agrees with Pierce’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 enhancement paragraphs alleged in the indictment, and by adding 

an affirmative finding of family violence. Pierce did not file a reply to the State’s 

brief and has taken 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 judgment to make the record speak the truth 

when we have the necessary 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); Asberry v. State, 813 S.W.2d 

526, 529–30 (Tex. App.—Dallas 1991, pet. ref’d) (en banc). 

The record before us reveals that all five of the parties’ requested 

modifications are appropriate. As to Pierce’s three requested changes, 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 allegations 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 took 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 with which I stand charged exactly as 

alleged in the indictment in this cause.” Finally, the reporter’s record includes the 
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transcript from the hearing on the State’s amended motion to adjudicate guilt, and in 

it, the trial court made an affirmative finding of family violence. Thus, we sustain 

Pierce’s second issue to the extent that we reform the judgment as described below. 

III. CONCLUSION

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 “Defendant violated the conditions of 

community supervision, as set out in the State’s AMENDED Motion to 

Adjudicate Guilt, as follows” we delete 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 first page of the judgment, we delete 

the text stating, “(2) The Court deferred further proceedings, made no 

finding of guilt, and rendered no judgment” and replace it with text 

stating, “(2) The Court found “true” the two enhancements paragraphs 

alleged in the indictment, deferred further proceedings, made no 

finding of guilt, and rendered no judgment;” and 

(5) Adding on page 2 of the judgment, after the text stating 

“Furthermore, the following special findings or orders apply,” text 

stating, “The Court affirmatively finds that the offense involved family 

violence, as defined by Section 71.004, Family Code.” 

As reformed, we affirm the judgment. 

Do Not Publish 

TEX. R. APP. P. 47.2(b) 

230315F.U05 

/Ken Molberg/

KEN MOLBERG 

JUSTICE 
 –14– 

S 

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, Dallas 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 date, 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 “Defendant violated the conditions of 

community supervision, as set out in the State’s AMENDED Motion to 

Adjudicate Guilt, as follows” we delete 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 first page of the judgment, we delete 

the text stating, “(2) The Court deferred further proceedings, made no 

finding of guilt, and rendered no judgment” and replace it with text 

stating, “(2) The Court found “true” the two enhancements paragraphs 

alleged in the indictment, deferred further proceedings, made no 

finding of guilt, and rendered no judgment;” and 

(5) Adding on page 2 of the judgment, after the text stating 

“Furthermore, the following special findings or orders apply,” text 
 –15– 

stating, “The Court affirmatively finds that the offense involved family 

violence, as defined by Section 71.004, Family Code.” 

 As REFORMED, the judgment is AFFIRMED. 

Judgment entered this 19th day of August, 2024.