## NO S . 12

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- CR 12

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- 00277

- CR

IN THE COURT OF APPEALS

TWELFTH COURT OF APPEALS DISTRICT

TYLER, TEXAS

JUSTIN OBRIEN ELLIS, APPELLANT

V.

THE STATE OF TEXAS, APPELLEE §

§

§ APPEAL FROM THE 3 RD

JUDICIAL DISTRICT COURT

ANDERSON COUNTY, TEX AS MEMORANDUM OPINION
Justin Obrien Ellis appeals his convictions for two counts of burglary of a habitation, two

co unts of aggravated kidnapping, theft from a person, ―assault causing bodily injury to a family
member with a prior conviction,‖ and ―assault family violence by occlusion.‖ In his sole issue in
each appeal, he contends that the trial court abused its discr etion in rendering its judgment nunc pro tunc adjudicating guilt that fails to speak the truth. We modify the trial court’s judgment,
and as modified, affirm.

B ACKGROUND In 2010, Appellant was indicted for two counts of burglary of a habitation and two c ounts of aggravated kidnapping (trial court cause number 30,294 ; appellate court cause number 12

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00 276

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. The burglary of a habitation offenses were first degree felonies as alleged, 1 and the
aggravated kidnapping offenses were second degree felonies as alleged. 2 In 2012, he pleaded
guilty to all four counts. The trial court placed Appellant on deferred adjudication community
supervision for ten years. In 2013, the State filed a motion to adjudicate Appellant’s guilt,

1 See T EX

. P ENAL C ODE A NN

. § 30.02(a), (d) (West 2011).

2 See id. § 20.04(a), (b), (d) (West 2011).2

alleging that he violated the terms of his community supervision in several respects. Appellant pleaded ―not true‖ to the allegations in the State’s motion.
After a hearing, the trial court granted the State’s motion, found Appellant guilty of the
offenses, revoked his community supe rvision, and sentenced him to sixty years of imprisonment
on each burglary of a habitation count, and ten years of imprisonment on each of the aggravated
kidnapping counts.
Separately in 2010, Appellant was indicted in another case for a number of offens es, including (1) theft from a person, a state jail felony as alleged, 3 (2) assault causing bodily injury
to a family member with a prior conviction, 4 and (3) assault family violence by occlusion, a
second degree felony as alleged (trial court cause number 30,179; appellate court cause number

12

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- CR)

. 5 As in the other case, in 2012, Appellant pleaded guilty to the offenses

, and the
trial court placed Appellant on deferred adjudication community supervision for ten years. The

State filed a motion to adjudicate Appellant’s guilt in 2013, alleging the same violations of his
community supervision as in the other case. Appellant also pleaded ―not true‖ to the allegations

in the State’s motion for this case.
After a hearing, the trial court granted the St ate’s motion, found Appellant guilty of the
offenses, revoked his community supervision, and sentenced him to two years of confinement for
the state jail felony, and ten years of imprisonment for each of the two assault offenses. The trial

court ordered t hat the sentences for all offenses in both cases were to be served concurrently.

E RROR IN THE J UDGMENT In his sole issue, Appellant argues that the trial court’s written judgment nunc pro tunc in
each case incorrectly reflect s that Appellant pleaded ―tr ue‖ to the al legations in the State’s

motion to proceed with an adjudication of guilt. We have the authority to modify a judgment to
speak the truth when we have the necessary information before us to do so. See 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 (Tex. App.

— Dallas 1991, pet. ref’d). The record reflects that Appellant

3 See id. § 31.03(a) (West Supp. 2014).

4 See id. § 22.01(b)(2)(A) (West. Supp. 2014).

5 See id. § 22.01(b

- 1).3

pleaded ―not true‖ to all of the allegations in the State’s motions. Theref ore, the trial court’s
j udgment nunc pro tunc in each case should be modified to reflect that Appellant pleaded ―not
true‖ to the allegations contained in the State’s motion to proceed with an adjudication of guilt. 6
Appellant’s sole issue in each case is sustained.

D ISPOSITION Having sustained Appellant’s sole issue, we modify the trial court’s judgment nunc pro

tunc in each case to reflect that he pleaded ―not true‖ to the allegations in the State’s motions to
adjudicate guilt, and as modified

, affirm

.

J AMES T. W ORTHEN Chief J ustice

Opinion delivered August 20, 2014. Panel consisted of Worthen, C.J., Griffith, J., and Hoyle, J.

( DO NOT PUBLISH )

6 We note that Appellant d oes not challenge the sufficiency of the evidence to support the trial court’s findings that the allegations in the State’s motions are true.

## COURT OF APPEALS

TWELFTH COURT OF APPEALS DISTRICT OF TEXAS

JUDGMENT

AUGUST 20 , 2014

NO. 12

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- 00276

- CR

JUSTIN OBRIEN ELLIS, Appellant V. THE STATE OF TEXAS, Appellee

Appeal from the 3rd District Court
of Anderson County, Texas (Tr.Ct.No. 30294)

THIS CAUSE came on to be heard on the appellate record and the briefs
filed herein; and the same being ins pected, it is the opinion of the Court that the trial court’s
judgment below should be modified and, as modified, affirmed

.

It is therefore ORDERED, ADJUDGED and DECREED that the trial court’s judgment nunc pro tunc below be modified to reflect that App ellant pleaded ―not true‖ to

the al legations in the State’s motion to adjudicate guilt ; and as modified , the trial court’s
judgment is affirmed ; and that this decision be certified to the trial court below for observance.

James T. Worthen , Chief Justice

. P anel consisted of Worthen, C.J., Griffith, J., and Hoyle, J.

## COURT OF APPEALS

TWELFTH COURT OF APPEALS DISTRICT OF TEXAS

JUDGMENT

AUGUST 20 , 2014

NO. 12

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- 0027 7

- CR

JUSTIN OBRIEN ELLIS, Appellant V. THE STATE OF TEXAS, Appellee

Appeal from th e 3rd District Court
of Anderson County, Texas (Tr.Ct.No. 30,179)

THIS CAUSE came on to be heard on the appellate record and the briefs filed herein; and the same being inspected, it is the opinion of the Court that the trial court’s
judgment below sho uld be modified and, as modified, affirmed

.

It is therefore ORDERED, ADJUDGED and DECREED that the trial court’s judgment nunc pro tunc below be modified to reflect that Appellant pleaded ―not true‖ to
the allegations in the Sta te’s motion to adjudicate guilt ; and as modified , the trial court’s
judgment is affirmed ; and that this decision be certified to the trial court below for observance.

James T. Worthen, Chief Justice

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