PD No. __________ 

IN THE 

COURT OF CRIMINAL APPEALS 

OF TEXAS 

 

 BERNARD KAY ROSS, 

APPELLANT 

vs. 

THE STATE OF TEXAS, 

APPELLEE 

 

Seeking discretionary review of an opinion of the Fifth District Court of Appeals 

In Cause No. 05-14-00014-CR

On appeal from the 203rd Judicial District Court of Dallas County, Texas 

In Cause No. F13-24874-P 

 

STATE’S PETITION FOR DISCRETIONARY REVIEW 

 

 Counsel of Record:

SUSAN HAWK KAREN R. WISE 

CRIMINAL DISTRICT ATTORNEY ASSISTANT DISTRICT ATTORNEY 

DALLAS COUNTY, TEXAS STATE BAR NO. 21810200 

 FRANK CROWLEY COURTS BUILDING 

 133 N. RIVERFRONT BLVD., LB-19

 DALLAS, TEXAS 75207-4399 

 (214) 653-3637 

 

Attorneys for the State of Texas

PD-0062-15

COURT OF CRIMINAL APPEALS

AUSTIN, TEXAS

Transmitted 1/22/2015 9:00:49 AM

Accepted 1/28/2015 9:54:08 AM

ABEL ACOSTA

CLERK
ii

TABLE OF CONTENTS

INDEX OF AUTHORITIES.................................................................................... iii

IDENTITY OF JUDGES, PARTIES, AND COUNSEL ........................................ iv

STATEMENT REGARDING ORAL ARGUMENT ...............................................1

STATEMENT OF THE CASE..................................................................................1

STATEMENT OF PROCEDURAL HISTORY........................................................2

QUESTION PRESENTED FOR REVIEW ..............................................................2

ARGUMENT.............................................................................................................2

PRAYER....................................................................................................................8

CERTIFICATE OF SERVICE ..................................................................................9
iii

INDEX OF AUTHORITIES

Cases

Beedy v. State, 

194 S.W.3d 595 (Tex. App. – Houston [1st Dist.] 2006), aff’d on other grounds,

Beedy v. State, 250 S.W.3d 107 (Tex. Crim. App. 2008) .............................................. 6

McNew v. State, 

608 S.W.2d 166 (Tex. Crim. App. 1978)........................................................................ 6

Ex parte Garza, 

192 S.W.3d 658 (Tex. App. – Corpus Christi 2006, no pet.)..................................6, 7, 8

Hurley v. State, 

130 S.W.3d 501 (Tex. App. – Dallas 2004, no pet.) ...........................................5, 6, 7, 8

Nicholas v. State, 

56 S.W.3d 760 (Tex. App. – Houston [14th Dist.] 2001, pet. ref'd) ............................... 5

Ross v. State, 

No. 05-14-00014-CR, 2014 Tex. App. LEXIS 13479 (Tex. App. – Dallas Dec. 17, 

2014) (not designated for publication) ........................................................................2, 3

Statutes

Tex. Code Crim. Proc. Ann. art. 42.08(a) (West Supp. 2013)............................................ 5

Rules

Tex. R. App. P. 66.3(a)........................................................................................................ 3
iv

IDENTITY OF JUDGES, PARTIES AND COUNSEL

1. Judges: Hon. Teresa Hawthorne, 

Presiding Judge of the 203rd Judicial

District Court of Dallas County

Hon. Lisa Bronchetti,

Dallas County Magistrate

2. Petitioner: The State of Texas

3. Counsel for Petitioner: Karen R. Wise, on appeal

Stephanie Nicole Mitchell, at trial

Kelly Benavides, at trial

Assistant District Attorneys

Dallas County, Texas

133 N. Riverfront Blvd., LB 19

Dallas, Texas 75207-4399

4. Respondent: Bernard Kay Ross

5. Counsel for Respondent: Riann C. Moore, on appeal

Public Defender’s Office

Dallas County, Texas

133 N. Riverfront Blvd., LB 2

Dallas, Texas 75207

Davey O. Lamb, at trial

P.O. Box 596244

Dallas, Texas 75359
1

TO THE HONORABLE COURT OF CRIMINAL APPEALS:

The State of Texas submits this Petition for Discretionary Review of the 

decision of the Court of Appeals for the Fifth District of Texas at Dallas, 

modifying the trial court’s decision on Appellant’s deferred adjudication order, 

which was appealed from the 203

rd Judicial District Court of Dallas County, Texas, 

in Trial Cause No. F13-24874-P (Appeal Cause No. 05-14-00014-CR). 

STATEMENT REGARDING ORAL ARGUMENT

The issues raised in the State’s Petition for Discretionary Review are not 

complex and the pertinent underlying facts are apparent in a small portion of the 

record. Thus, the issues in this case can be decided on the briefs submitted by the 

parties. The State does not request oral argument if this Petition for Discretionary 

Review is granted, although the State will argue its case if this Honorable Court 

desires.

STATEMENT OF THE CASE

Appellant pled guilty to robbery and was placed on deferred adjudication 

community supervision for 10 years. (CR2: 15). The trial court ordered that 

Appellant’s term of community supervision would be stacked onto his prison 

sentence in his companion burglary case. (CR2: 4; RR3: 27-29).
2

STATEMENT OF PROCEDURAL HISTORY

On April 4, 2014, Appellant filed a brief raising six points of error on direct 

appeal of his conviction. The State filed its response to Appellant’s brief on June 

2, 2014. Both parties presented oral argument to the Court of Appeals on 

November 12, 2014. On December 17, 2014, the Dallas Court of Appeals issued 

an unpublished opinion modifying the trial court’s decision on Appellant’s 

deferred adjudication order by deleting the stacking order. Ross v. State, No. 05-

14-00014-CR, 2014 Tex. App. LEXIS 13479 (Tex. App. – Dallas Dec. 17, 2014)

(not designated for publication). This Petition for Discretionary Review is timely 

if filed on or before January 16, 2015.

QUESTION PRESENTED FOR REVIEW

Did the Court of Appeals err in determining that the trial court improperly 

stacked Appellant’s term of deferred adjudication community supervision in this 

case on his prison sentence in another case?

ARGUMENT

THE COURT OF APPEALS ERRED BY DELETING THE 

TRIAL COURT’S ORDER STACKING APPELLANT’S TERM 

OF DEFERRED COMMUNITY SUPERVISION IN THE 

INSTANT CASE ON HIS PRISON SENTENCE IN ANOTHER 

CASE. 
3

In his brief on direct appeal, Appellant claimed the trial court erred in

stacking his term of deferred adjudication community supervision in the instant 

robbery case on his prison sentence in his burglary case. The Dallas Court of 

Appeals determined the issue in Appellant’s favor and modified his deferred 

adjudication order to reflect that his period of community supervision is to run 

concurrently with his sentence in the burglary case. Ross v. State, No. 05-14-

00014-CR, 2014 Tex. App. LEXIS 13479 (Tex. App. – Dallas Dec. 17, 2014) (not 

designated for publication).

1

 The State will demonstrate that this Court’s review of 

the decision of the Court of Appeals is appropriate under Tex. R. App. P. 66.3(a)

because the Court of Appeals’ decision conflicts with another Court of Appeals’ 

decision on the same issue. 

RELEVANT FACTS

At the conclusion of the hearing on the revocation of Appellant’s probation 

in Cause No. F12-57536 (the burglary case) and consideration of the new charges 

in Cause No. F13-24874 (the instant robbery case), the court stated the following:

THE COURT: You know what, Mr. Bernard, I am just 

disgusted with you. And I -- you know, I could imagine myself being 

out there and someone like you and some other person coming up and 

doing this. And here’s what really perturbs the Court is that I tried to 

help you. I cut your fines and your court costs and I did everything I 

 

1 Appellant’s robbery and burglary cases were considered in the same appeal. Because the 

deletion of the stacking order involves only the robbery case, this Petition for Discretionary 

Review is being filed only in the robbery case.
4

possibly could. And to be real honest with you, I’m going to tell you

this, you should get 20 years right this minute, that’s what you should 

get. But due to your age, I’m going to give you a chance. And in 

Cause Number F12-57536, I am going to grant the State’s motion 

to revoke your probation. I’m going to assess your punishment in 

that case at ten years confinement in the state jail -- in the Texas 

Department of Criminal Justice. And your back time will be 

granted. And all cost will run currently with your time. And I’m 

going to place on here that you should enter the SAFPF program 

while you are in prison, because it would be advisable for you while 

you are serving your time. And hopefully you will probably do four --

at least four or five years.

Then in Cause Number F13-24874, I am going to not find 

you guilty of this offense, however, I am going to place you on ten 

years deferred probation. So when you get out of prison, whatever 

time you have left -- look at you. Do you want -- do you want me to 

give you 40 right now? Because I sure as hell will. I will give you 20 

on each case and stack them, because I am tired of this bullshit. So

you’re lucky you’re not getting 40 right now. Wise ass out there. I 

don’t give a damn if it is a fake gun. No, she didn’t know it was a fake 

gun.

So when you get out of prison, you’re going back on 

probation for ten years, and if you didn’t do the SAFPF program 

and – I’m going to send you to SAFPF at the beginning of that 

probation. I’ve got zero tolerance on that case. And you will -- you 

will have -- you will be on probation for that case and then, sir, -- look 

at me. If you mess up on that case, I can still give you 20. So you’re

going to either learn as a young man to get your act together or just 

spend the rest of your life in prison hanging out with that guy smoking 

whatever crap you guys were smoking. I’m sick of it and the 

community is sick of it.

And you can tell those people in jail, yes, Judge Hawthorne will 

help you, and she’ll do everything for you, but then when you don’t 

do it – you’re lucky you’re not getting 40. Do you have any questions, 

sir? Yes.

THE DEFENDANT: Why wouldn’t I just get ten and ten and run 

concurrent?
5

THE COURT: Because you’re not the Judge, and I’m making the 

decision, that’s why. Do you have another question?

THE DEFENDANT: No, Your Honor.

(RR3: 27-29) (Emphasis added). The court then sentenced Appellant to prison 

time in Cause No. F12-57536. (RR3: 29). The court’s docket sheet in Cause No. 

F13-24874-P states, “This prob [probation] will begin AFTER Def serves time on 

Cause F 12-57536[.]” (CR2: 4).

SENTENCES WERE PROPERLY CUMULATED

The Code of Criminal Procedure gives trial courts the discretion to cumulate 

sentences for two or more separate convictions, or to have such sentences run 

concurrently. Tex. Code Crim. Proc. Ann. art. 42.08(a) (West Supp. 2013) 

provides the following:

[I]n the discretion of the court, the judgment in the second and 

subsequent convictions may either be that the sentence imposed or 

suspended shall begin when the judgment and the sentence imposed or 

suspended in the preceding conviction has ceased to operate, or that 

the sentence imposed or suspended shall run concurrently with the 

other case or cases....

A trial court’s decision to cumulate sentences is reviewed for an abuse of 

discretion. Nicholas v. State, 56 S.W.3d 760,765 (Tex. App. – Houston [14th 

Dist.] 2001, pet. ref'd).

In the instant case, the Dallas Court of Appeals followed its earlier decision 

in Hurley v. State, 130 S.W.3d 501,503 (Tex. App. – Dallas 2004, no pet.), in 
6

which the Court considered whether a deferred adjudication community 

supervision could be stacked on a prison sentence and decided that it could not be 

stacked. Hurley argued that because he was placed on deferred adjudication, he 

was not convicted in that case, and the trial court lacked authority to stack his 

community supervision onto his prison sentence. Id. at 504. The Dallas Court of 

Appeals determined that a “conviction” always involves an adjudication of guilt 

and, therefore, a court’s action in deferring the proceedings without an adjudication 

of guilt is not a “conviction.” Id. at 505 (citing McNew v. State, 608 S.W.2d 

166,171 (Tex. Crim. App. 1978)). Because Hurley’s deferred adjudication 

community supervision was not a conviction for purposes of article 42.08, the 

Court of Appeals concluded that the trial court abused its discretion in ordering the 

deferred adjudication to begin after Hurley served his prison sentence. Id. at 507. 

The decision of the Dallas Court of Appeals in Hurley was followed by the First 

Court of Appeals in Beedy v. State, 194 S.W.3d 595,601 (Tex. App. – Houston [1st 

Dist.] 2006), aff’d on other grounds, Beedy v. State, 250 S.W.3d 107 (Tex. Crim. 

App. 2008).

2

The Corpus Christi Court of Appeals, however, has reached a conflicting 

decision under the same facts considered in Hurley. In Ex parte Garza, 192 

 

2

In affirming Beedy, the issue before this Court appears to have been only which remedy 

(reforming the judgment or remanding for a new punishment hearing) was proper.
7

S.W.3d 658,660 (Tex. App. – Corpus Christi 2006, no pet.), the trial court ordered 

that Garza’s ten years of community supervision for attempted indecency be 

deferred and take effect after he was released from prison for felony DWI. 

Thereafter, when Garza was released from prison, the trial court entered an order 

that he begin to serve ten years of community supervision for attempted indecency 

with a child. Id. Garza cited the Dallas Court’s opinion in Hurley to argue that the 

trial court could not stack the deferred adjudication without a conviction on the 

prison sentence. Garza, 192 S.W.3d at 661. The Corpus Christi Court of Appeals 

rejected that argument as follows:

However, the conclusion reached in Hurley does not apply here. It is 

well established that a defendant placed on deferred adjudication, in 

addition to not yet being convicted, also has not yet had a sentence 

imposed. See Davis v. State, 968 S.W.2d 368, 371 (Tex. Crim. App. 

1998); see also Donovan v. State, 68 S.W.3d 633, 636 (Tex. Crim. 

App. 2002). Article 42.08 explicitly requires a second “sentence” that 

begins when the preceding sentence “ceases to operate” for there to be 

stacking of sentences. See TEX. CODE CRIM. PROC. ANN. art. 

42.08(a) (Vernon Supp. 2005). A trial court cannot be in violation of a 

sentence-stacking statute if there is only one sentence involved. See 

id. In this case, there was neither a conviction nor a sentence imposed 

by the court for the second case at the time Garza was given deferred 

adjudication. The conviction and sentencing in the second case were 

imposed after Garza was released from imprisonment for the first 

case, thus giving the trial court the authority at that point to order the 

commencement of Garza’s sentence of community supervision. 

Because we conclude that this is not a case of illegal sentence 

stacking, we overrule Garza’s first issue.

Garza, 192 S.W.3d at 661-662 (Emphasis in original).
8

The State requests that this Court consider the conflict among the Courts of 

Appeals and overrule the decision in Hurley and the instant case for the same 

reasons given in Garza. As in Garza, there was only one sentence imposed in the 

instant case. The trial court sentenced Appellant to prison time in the burglary 

case, Cause No. F12-57536, but deferred adjudication and did not pronounce 

sentence in the instant case, Cause No. F13-24874. Because there is only one 

sentence involved, the trial court cannot be in violation of article 42.08, which 

provides for the stacking of two sentences. 

The State submits that the Dallas Court of Appeals should have concluded 

that the trial court can properly stack Appellant’s term of deferred adjudication 

community supervision onto his prison sentence in his burglary case. Therefore, 

the Court of Appeals should not have modified his deferred adjudication order to 

reflect that his period of community supervision is to run concurrently with his 

sentence in the burglary case. To correct this error by the Dallas Court of Appeals, 

this Court should grant the State’s Petition for Discretionary Review and affirm the 

trial court’s decision regarding the order to stack his term of community 

supervision onto his prison time.

PRAYER

For all the foregoing reasons, the State prays that this Honorable Court will 

grant this petition for discretionary review, and upon review of the opinion in this 
9

cause, reverse the decision of the Court of Appeals for the Fifth District of Texas at 

Dallas to modify his deferred adjudication order to reflect that his period of 

community supervision is to run concurrently with his burglary sentence.

Respectfully submitted,

_________________________

SUSAN HAWK KAREN R. WISE

Criminal District Attorney Assistant District Attorney

Dallas County, Texas State Bar No. 21810200

Frank Crowley Courts Building

133 N. Riverfront Blvd., LB-19

Dallas, Texas 75207-4399

(214) 653-3637

(214) 653-3643 fax

CERTIFICATE OF SERVICE AND WORD-COUNT COMPLIANCE 

I hereby certify that a true copy of the foregoing PDR was served on Riann 

C. Moore, attorney for Appellant, Dallas County Public Defender’s Office, 133 N. 

Riverfront Blvd., LB 2, Dallas, Texas 75207-4399, by hand delivery and electronic 

communication through eFile.txcourts.gov to Riann.Moore@dallascounty.org, on 

January 22, 2015. I further certify that this document contains 2,554 words, 

inclusive of all contents.

I hereby certify that a true copy of the foregoing PDR was served on Lisa C.

McMinn, State Prosecuting Attorney, by electronic communication through 

eFile.txcourts.gov to information@spa.texas.gov on January 22, 2015.

___________________________

KAREN R. WISE
10

APPENDIX
BERNARD KAY ROSS, Appellant v. THE STATE OF TEXAS, Appellee

No. 05-14-00014-CR, No. 05-14-00015-CR

COURT OF APPEALS OF TEXAS, FIFTH DISTRICT, DALLAS

2014 Tex. App. LEXIS 13479

December 17, 2014, Opinion Filed

NOTICE: PLEASE CONSULT THE TEXAS RULES

OF APPELLATE PROCEDURE FOR CITATION OF

UNPUBLISHED OPINIONS.

PRIOR HISTORY: [*1] On Appeal from the 203rd

Judicial District Court Dallas County, Texas. Trial Court

Cause Nos. F13-24874-P and F12-57536-P.

CASE SUMMARY:

OVERVIEW: ISSUE: Whether a trial court could stack

a term of deferred adjudication community supervision

onto a prison sentence. HOLDINGS: [1]-It was error for

a trial court to stack defendant's term of deferred

adjudication community supervision onto his prison

sentence, under Tex. Code Crim. Proc. Ann. art. 42.08(a)

(Supp. 2014), because the deferred adjudication did not

include an adjudication of guilt, so it was not a conviction

for purposes of the statute.

OUTCOME: Judgment affirmed as modified.

LexisNexis(R) Headnotes

Criminal Law & Procedure > Sentencing > Appeals >

Standards of Review > Abuse of Discretion

Criminal Law & Procedure > Sentencing > Concurrent

Sentences

Criminal Law & Procedure > Sentencing > Consecutive

Sentences

Criminal Law & Procedure > Sentencing > Multiple

Convictions

Criminal Law & Procedure > Preliminary Proceedings

> Pretrial Diversion > Appellate Review & Judicial

Discretion

[HN1] An appellate court reviews a trial court's decision

to cumulate sentences for an abuse of discretion.

Cumulative sentencing is permitted only as provided by

statute. Tex. Code Crim. Proc. Ann. art. 42.08 (Supp.

2014) provides that when a defendant has been convicted

in two or more cases, a trial court has discretion to order

the judgment and sentence imposed in the second

conviction either 1) to begin to run after the judgment and

sentence imposed in the preceding conviction has ceased

to operate, or 2) to run concurrently with the judgment

and sentence imposed in the preceding conviction. Tex.

Code Crim. Proc. Ann. art. 42.08(a) (Supp. 2014).

Because it does not include an adjudication of guilt, a

deferred adjudication order is not a conviction for

purposes of Tex. Code Crim. Proc. Ann. art. 42.08 (Supp.

2014). Under the statute, a trial court does not have

discretion to stack two sentences until a defendant has

been convicted of two or more offenses and sentences are

imposed or suspended in those cases. Accordingly, a trial

court abuses its discretion in ordering a deferred

adjudication to begin after a defendant serves his or her

prison sentence.

Page 1
COUNSEL: For Appellants: Riann Moore, Katherine

Drew, Lynn Richardson, Dallas, TX.

For Appellees: Karen Wise, Craig Watkins, Dallas, TX.

JUDGES: Before Justices FitzGerald, Lang, and Brown.

Opinion by Justice Brown.

OPINION BY: ADA BROWN

OPINION

MEMORANDUM OPINION

Opinion by Justice Brown

Bernard Kay Ross appeals from an order of deferred

adjudication for robbery and a conviction for burglary. At

issue is whether a trial court can stack a term of deferred

adjudication community supervision onto a prison

sentence. This Court has already determined this issue in

appellant's favor. We modify the order of deferred

adjudication to reflect that the period of community

supervision is to run concurrently with the burglary

sentence. We further modify the order and also the

judgment of conviction to make other revisions the

parties agree upon. As modified, we affirm the trial

court's order and judgment.

In 2012, appellant was indicted for burglary of a

habitation. He pleaded guilty pursuant to a plea bargain

agreement and was placed on deferred adjudication

community supervision for six years and fined $2,500. In

2013, appellant was indicted for robbery.1 Based on this

new offense, among other things, the State moved to

revoke appellant's community [*2] supervision.

1 Appellant was indicted for aggravated robbery,

but the trial court later granted the State's motion

to reduce the charge to robbery.

On November 1, 2013, appellant pleaded guilty to

robbery and true to the allegations in the State's motion to

revoke. The court revoked appellant's community

supervision, adjudicated appellant guilty of burglary, and

assessed punishment for that offense at ten years'

confinement. The court also deferred finding appellant

guilty of robbery and placed him on deferred adjudication

community supervision for ten years. The court orally

pronounced that the term of deferred adjudication would

begin after appellant served his prison sentence, stating,

"So when you get out of prison, you're going back on

probation for ten years."

In his first point of error, appellant contends the trial

court erred in stacking his term of deferred adjudication

community supervision onto his prison sentence. We

agree.

[HN1] We review a trial court's decision to cumulate

sentences for an abuse of discretion. Hurley v. State, 130

S.W.3d 501, 503 (Tex. App.--Dallas 2004, no pet.).

Cumulative sentencing is permitted only as provided by

statute. Id. Article 42.08 of the code of criminal

procedure provides that when a defendant has been

convicted in two or more cases, the trial court has

discretion [*3] to order the judgment and sentence

imposed in the second conviction either 1) to begin to run

after the judgment and sentence imposed in the preceding

conviction has ceased to operate, or 2) to run

concurrently with the judgment and sentence imposed in

the preceding conviction. Id.; see TEX. CODE CRIM.

PROC. ANN. art. 42.08(a) (West Supp. 2014). In Hurley,

we held that, because it does not include an adjudication

of guilt, a deferred adjudication order is not a conviction

for purposes of article 42.08. Hurley, 130 S.W.3d at 505;

see Beedy v. State, 194 S.W.3d 595, 602 (Tex.

App.--Houston [1st Dist.] 2006), aff'd, 250 S.W.3d 107

(Tex. Crim. App. 2008).

2 Under the statute, the trial court

does not have discretion to stack two sentences until a

defendant has been convicted of two or more offenses

and sentences are imposed or suspended in those cases.

Hurley, 130 S.W.3d at 506. Accordingly, we concluded

the trial court abused its discretion in ordering the

deferred adjudication to begin after the defendant served

his prison sentence. Id. at 507. We reach the same

conclusion in this case.

2 In Beedy, the court of criminal appeals

addressed only the issue of what the appropriate

remedy was for an improper cumulation order --

deletion of the improper cumulation order or

remand for resentencing. Beedy, 250 S.W.3d at

109. The court determined the proper remedy was

to delete the cumulation order. Id. at 115.

The State urges [*4] us to reconsider this issue in

light of Ex parte Garza, 192 S.W.3d 658 (Tex.

App.--Corpus Christi 2006, no pet.). The court of appeals

in that habeas case did not disagree with Hurley but

instead found the conclusion we reached did not apply. Id

Page 2

2014 Tex. App. LEXIS 13479, *1
. at 661. It seemed to draw a distinction based on the fact

that Garza had already been released from prison and,

upon his release, the court had entered a new order that

he begin to serve his deferred adjudication community

supervision. Id. at 660-62. It ruled that a trial court

cannot be in violation of a sentence stacking statute if

there is only one sentence involved. Id. at 662. We do not

find Garza persuasive and will follow the precedent of

this Court.

Although the trial court orally pronounced that the

term of community supervision would begin to run after

appellant served his prison term, its order of deferred

adjudication is silent on whether the period of community

supervision is to run concurrently or consecutively with

the prison sentence. Nevertheless, to be clear, we modify

the order to reflect that the period of deferred

adjudication community supervision is to run

concurrently with the sentence in the burglary case. We

sustain appellant's first point of error.

In points two through six, appellant contends we

need to make other [*5] modifications to the order of

deferred adjudication, as well as the judgment in the

burglary case, to correct various errors. Specifically, he

contends the order and judgment both erroneously

indicate there was a plea bargain agreement, when his

pleas of guilty and true were open pleas. He also

contends the documents incorrectly reflect that the State's

attorney was Herschel Wood, when the reporter's records

show it was Stephanie Mitchell. Finally, appellant

contends the judgment of conviction does not reflect the

court's oral order that he attend the Substance Abuse

Felony Punishment Facility (SAFPF) drug program while

in prison.3 The State agrees these modifications should be

made. See Asberry v. State, 813 S.W.2d 526, 529 (Tex.

App.--Dallas 1991, pet. ref'd) (appellate court has power

to correct and reform judgment of court below to make

record speak truth when it has information to do so). We

sustain points of error two through six.

3 The trial court stated, "And I'm going to place

on here that you should enter the SAFPF program

while you are in prison, because it would be

advisable for you while you are serving your

time."

We modify the order of deferred adjudication in

cause number F13-24874-P to reflect that: 1) the period

of community supervision is to [*6] run concurrently

with the sentence in cause number F12-57536-P; 2) the

attorney for the State was Stephanie Mitchell; and 3) the

"Terms of Plea Bargain" are none. We modify the

judgment in cause number F12-57536-P to reflect that: 1)

the attorney for the State was Stephanie Mitchell; 2) the

"Terms of Plea Bargain" are none; and 3) appellant shall

attend SAFPF. We order the trial court to enter a new

order of deferred adjudication and a new judgment of

conviction to reflect these modifications. As modified,

we affirm the trial court's order of deferred adjudication

and its judgment of conviction.

/Ada Brown/

ADA BROWN

JUSTICE

Do Not Publish

TEX. R. APP. P. 47.

JUDGMENT

Based on the Court's opinion of this date, the trial

court's order of deferred adjudication is MODIFIED as

follows:

The period of community supervision is to run

concurrently with the sentence in cause number

F12-57536-P.

The attorney for the State was Stephanie Mitchell.

The "Terms of Plea Bargain" are none.

We ORDER the trial court to enter a new order of

deferred adjudication to reflect these modifications. As

MODIFIED, the order is AFFIRMED.

Judgment entered this 17th day of December, 2014.

JUDGMENT

Based on the Court's opinion of [*7] this date, the

judgment of the trial court is MODIFIED as follows:

The attorney for the State was Stephanie

Mitchell.

The "Terms of Plea Bargain" are

none.

The defendant shall attend SAFPF.

Page 3

2014 Tex. App. LEXIS 13479, *4
As MODIFIED, the judgment is

AFFIRMED.

Judgment entered this 17th day of December, 2014.

Page 4

2014 Tex. App. LEXIS 13479, *7