## In The Court of Appeals Sixth Appellate District of Texas at Texarkana

No. 06

- 21

- 00053

- CR

ZAFRES LAMONN MCDONALD , Appellant

V. THE STATE OF TEXAS , Appellee

On Appeal from the 188th District Court Gregg County, Texas Trial Court No. 50098

- A

B efore Morriss, C.J., Stevens and Carter , * JJ. Memorandum Opinion by Justice Stevens

____________ *Jack Carter, Justice, Retired, Sitting by Assignment2 

### ME MORANDUM OPINION Za fres Lamonn McDo nald entered an open plea of guilty to unauthorized use of a m otor vehicle and pled true to the State’s habitual

- offender punishment

- e nhancement allegations. See T EX . P ENAL C ODE A NN . § 31.07. After hearing evidence on punishment, the trial c ourt sentenced McDonald to eighteen years’ imprisonment. McDonal d appeal s . In addition to this appeal, in companion cause numbers 06

- 21

- 00052

- CR, 06

- 21

- 00054

- CR, and 06

- 21

- 00055

- CR, McDonald appeals his convictions for two counts of evading arrest or d etention with a motor vehicle and credit card abuse. McDonald has fi l ed a si ngle bri ef raising a sole issue common to all his appeal s. He argues that the trial court erred by failing to enforce an alleged plea agreement. We addressed this issue in detail in our opinion of this date on McDonald’s appeal in cause number 0 6

- 21

- 00 052

- CR. For the reasons stated therein, we likewise con clude that the trial court properly concluded that there was no binding plea agreement in thi s case. As a result, we overrule McDonald’s sole point of error on appeal. Even so, we must modif y the tr ial cour t’s judgment to reflect the proper degree of off ense. McDonald’s judgment lists the degree of offense as a second

- degree felony, but McDona ld’s charge for unauthorized use of motor vehicle was a state jail felony. See T EX . P ENAL C ODE A NN . § 3 1.0 7(b ). A s a result of the State’s habitual

- offe nder punishment

enhancement allegations, McDonald’s offense was punishable as “ a felony of the second degree.” T EX . P ENAL C ODE A NN . § 12.42 5 ( b ). While the enhancement allegations w ere used to elev ate McDonal d’s p unishment r ange, they did not change the classific ation of the underlying3

offense. See id. ; Ford v. State , 334 S.W.3d 230, 234

– 35 (Tex. Crim. App. 2011); Bledsoe v. State , 480 S.W.3d 638, 64 2 n.11 (Tex. App.

— Texarkana 2015, pet. ref’d). A s a result, the judgment’ s recitation that McDonald’s offense wa s a second

- degree felony is incorrect. “This Court has the power to correct and modify the j udgment of the trial court for accuracy when the necessary data and information are part of the rec ord.” Anth ony v. State , 53 1 S.W.3d 739, 743 (Tex. App.

— Texarkan a 2016, no pet.) (citing T EX . R. A PP . P. 43.2(b); Bigley v. State , 865 S.W.2d 26, 27 (Tex. Cr im. App. 1993); Asberry v. State , 813 S.W.2d 526, 529 (Tex. App.

— Dallas 1991, pet. ref’d)). “The a uthority of an appellate co urt to reform incorrect judgments is not dependent upon the request of any party, nor does it turn on the question of whether a pa rty has or has not objected in the trial court.” Id. (quoting Asberry , 813 S.W.2d at 529

– 30). We modify the tri al court’s j udgment to reflect that McDonald was c onvicted of a state jail felony . As modified, we affirm the trial court’s judgment.

Scott E. Stevens Justice Date Submitted: January 10, 2022 Date Decided: March 2 , 2022 Do Not Publish