AFFIRMED as MODIFIED and Opinion Filed June 28, 2024 

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In The 

### Court of Appeals Fifth District of Texas at Dallas No. 05-23-00294-CR No. 05-23-00295-CR BRUCE LEROY RAYMO S, Appellant V. THE STATE OF TE XAS, Appellee On Appeal from the 199th Judicial District Court Collin County, Texas Trial Court Cause Nos. 199- 83209-2022, 199-83208-2022 MEMORANDUM OPINION Before Justices Reichek, Miskel, and Breedlove Opinion by Justice Reichek Bruce Leroy Raymos appeals his convictions for (1) possession with intent to deliver cocaine in an amount of one gram or more but less than four grams, and (2) possession with intent to deliver methampheta mine in an amount of four grams or more but less than two hundred grams. Appellant contends the evidence was insufficient to show the penalty group for e ither of the alleged controlled substances, and the court’s charge improperly allo wed the jury to convict him based on possession of a controlled substance in a penalty group other than group one. Appellant additionally assert s the trial court’s judgment should be modified to–2– correctly reflect his pleas to the enhancem ent paragraphs. We agree the judgments should be modified in the manner reque sted and, as reformed, we affirm. In his first and third issues, appellant c ontends the evidence is insufficient to support his convictions because the St ate failed to prove that cocaine and methamphetamine are pena lty group one controlled su bstances. Appellant acknowledges this Court has previously held that the penalty group of a controlled substance is not an element of the offe nse the State is required to prove. See Roberson v. State , No. 05-15-00550-CR, 2016 WL 3517937, at *2 (Tex. App.— Dallas June 20, 2016, no pet.) (mem. op., not designated for publication). Because the opinion was unpublished, however, appellant urges us to reconsider our holding based on a more recent opinion out of this Court. We decline to do so. Appellant relies on our opinion in Engelke v. State , No. 05-21-01077-CR, 2023 WL 3613731 (Tex. App.—D allas May 24, 2023, no pet.) (mem. op., not designated for publication) to support his positon that the penalty group of a controlled substance is an essential elemen t of the offense. Appellant cites the portion of the opinion stating that “[a] hypothetically correct jury charge for possession of a penalty group 1 controlled substance with inte nt to deliver states: a person commits an offense if the pers on knowingly manufactures, delivers, or possesses with intent to deliver a contro lled substance listed in Penalty Group 1 between four grams or more but less than 200 grams.” Id . at *2. In setting forth the hypothetically correct jury charge, the opi nion did not, as appellant suggests, hold–3– that the penalty group is an essential element of the offens e. Rather the opinion used the term “Penalty Group 1” to broadly refer to all contro lled substances within that group. The penalty group to which a contro lled substance is allocated is determined by the Texas Legislature and is a question of law, not fact. Plumlee v. State , No. 02- 17-00174-CR, 2018 WL 3153543, at *5 (Tex. App.—Fort Worth June 28, 2018, pet, ref’d) (mem. op., not designated for publicati on). Once the State proves the specific controlled substance possesse d by the defendant, it necessarily proves the penalty group applicable to the offense. See Cleveland v. State , No. 05-19-00515-CR, 2020 WL 2059912, at *1 (Tex. App.—Dallas Ap r. 29, 2020, no pet. ) (mem. op., not designated for publication). We resolve appellant’s firs t and third issues against him. In his second and fourth issues, appe llant contends the court’s charge erroneously asked the jury to determine wh ether he possessed with intent to deliver a “controlled substance” whic h was defined as “a substa nce, including a drug, an adulterant, and a dilutant, listed in Schedules I through V or Penalty Group 1, 1-A, 1-B, 2, 2-A, 3, or 4.” Because the defi nition of the term “controlled substance” included multiple penalty groups, and there was no evidence presented to show the penalty group applicable to either cocain e or methamphetamine, appellant contends the jury could have convicted him for possessing a controlled substance under the wrong penalty group.–4– Contrary to appellant’s assertion, the court’s charge did not simply ask the jury to determine whether he possessed a c ontrolled substance. The jury was asked specifically to find whether appellant pos sessed cocaine and me thamphetamine with intent to deliver them. As discussed a bove, the State did not need to prove the penalty group applicable to these drugs becau se the penalty group for each is a matter of law, not a fact issue for the jury. Id . Once the jury foun d appellant possessed cocaine and methamphetamine, they nece ssarily found he possessed controlled substances in penalty group one. See id. We conclude the court’s charge properly instructed the jury. We re solve appellant’s second and fourth issues against him. In his fifth issue, appellant contends the judgments in each case should be modified to reflect that he pleaded “tru e” to the enhancement paragraphs in the indictments. We agree. We have the pow er to modify a judgment to speak the truth when we have the necessary information to do so. See T EX

. R. A PP

. P. 43.2(b); Bigley v. State , 865 S.W.2d 26, 27–28 (T ex. Crim. App. 1993); Asberry v. State , 813 S.W.2d 526, 529 (Tex. App.—Dalla s 1991, pet. ref’d) (en ba nc). Accordingly, in both trial court cause num ber 199-83209-2022 and tria l court cause number 199- 83208-2022, we modify the judgment to de lete the word “NOT” in the section for “1st Enhancement Paragraph,” thereby re vising the entry to read to “PLEADED
TRUE.”–5– As reformed, the judgment is affirmed.

Do Not Publish T EX

. R. A PP

. P. 47.2(b) 230294F.U05 /Amanda L. Reichek / AMANDA L. REICHEK JUSTICE–6– 

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Court of Appeals Fifth District of Texas at Dallas JUDGMENT
BRUCE LEROY RAYMOS, Appellant

No. 05-23-00294-CR V. THE STATE OF TEXAS, Appellee On Appeal from the 199th Judicial District Court, Collin County, Texas Trial Court Cause No. 199-83209- 2022. Opinion delivered by Justice Reichek. Justices Miskel and Breedlove participating. Based on the Court’s opinion of this da te, the judgment of the trial court is MODIFIED as follows: In the section of the judgment for “1st Enhancement Paragraph,” we strike the word “NOT” thereby revi sing the entry to read “PLEADED TRUE.”
As REFORMED , the judgment is AFFIRMED

. Judgment entered June 28, 2024–7– 

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Court of Appeals Fifth District of Texas at Dallas JUDGMENT
BRUCE LEROY RAYMOS, Appellant
No. 05-23-00295-CR V. THE STATE OF TEXAS, Appellee On Appeal from the 199th Judicial District Court, Collin County, Texas Trial Court Cause No. 199-83208- 2022. Opinion delivered by Justice Reichek. Justices Miskel and Breedlove participating. Based on the Court’s opinion of this da te, the judgment of the trial court is MODIFIED as follows: In the section of the judgment for “1st Enhancement Paragraph,” we strike the word “NOT” thereby revi sing the entry to read “PLEADED TRUE.”
As REFORMED , the judgment is AFFIRMED

. Judgment entered June 28, 2024