## 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- 00 014- CR On appeal from the 203rd Judicial District Court of Dallas County, Texas

In Cause No. F 13

- 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 BL VD ., 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 CLERKii 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 HISTOR Y

................................ ........................ 2

QUESTION PRESENTED FOR REVIEW

................................ .............................. 2

ARGUMENT

................................ ................................ ................................ ............. 2

PRAYER

................................ ................................ ................................ .................... 8

CERTIFICATE OF SERVICE

................................ ................................ .................. 9iii INDEX OF AUTHORITIES

C ases 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. A pp. LEXIS 13479 (Tex. App.

– Dallas Dec. 17, 2014) (not designated for publication)

................................ ................................ ........ 2, 3

Statutes

T ex . C ode C rim . P roc . A nn . art. 42.08(a) (West Supp. 2013)

................................ ............ 5

Rules
Tex. R. App. P. 66.3(a)

................................ ................................ ................................ ........ 3iv IDENTIT Y OF JUDGES, PAR TIES 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. C ounsel for Petitioner: Karen R. Wise, on appeal Stephanie Nicole Mitchell , at trial Kelly Benavides , at trial Assistant District Attorney s Dallas County, Texas 133 N. Riverfront Blvd., LB 19 Dallas, Texas 75207

- 4399

4. Responden t: 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 753591

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 deferr ed adjudication order
, which was appealed from the 2 0 3 rd Judicial District Court of Dallas County, Texas,

in Trial Cause No. F 13

- 24874

- P (Appeal Cause No. 05

- 1 4

- 00 0 1 4

- 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. Th us, th e issues in this case can be decided on the briefs submitted by the
parties

. T he 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 point s of error on direct

a ppeal of his conviction

. T he State filed its response to Appellant’s brief o n June

2, 2014

. B oth parties presented o ral argument to the Court of Appeals o n
November 12, 2014 . On December 17 , 20 1 4 , the Dallas Court of Appeals issued

a n un published opinion modifying the trial court’s decision on Appellant’s
deferred adjudication or der by deleting the stacking order. Ross v. State , No. 05

-

1 4

- 00 0 1 4

- CR , 201 4 Tex. App. LEXIS 13479 (Tex. App.

– Dallas Dec. 17 , 20 1 4 )
(not designated for publication)

. This Petition for Discretionary Review is timely

if filed on or before J an u ar y 16 , 20 15

.

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 COUR T 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

stac king his term of deferred adjudication community supervision in th e 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 ref lect 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 ’ deci sion conflicts with another Court of Appeals’

decision on the same issue

.
R ELEVANT F ACTS
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 robber y 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. An d 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 mo tion 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. A nd 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 Num ber 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 righ t 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 wa s 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 pris on 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 H awthorne will help you, and she’ ll do everything for you, but then when you don’ t d o it

– you ’ re lucky you ’ re not g etting 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 q uestion?

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 AFT ER Def serves time on

Cause F 12

- 57536[.]” (CR2: 4).

S ENTENCES W ERE P ROPERLY C UMULATED
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 S upp. 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 prece ding 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.)
, in6

which the Cour t 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 th e 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
, t he issue before th is 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 cou rt 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 adjud ication, 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 Don ovan v. State , 68 S.W.3d 633, 636 (Tex. Crim. App. 2002)

. Article 42.08 explicitly requires a second “sentence” that begins when the p receding 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 def erred 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 commun ity 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

T he State requests that this Court consider th e conflict among the Courts o f
Appeals and overrule the decision in Hurley and the instant case for the same
reasons give n in Garza . As in Garza , there was only one sentence imposed in the

instan t 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 tria l 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 prope rly 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 super vision 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 t his9

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

Dallas to modif

y his deferred adjudication order to reflect that his period of
community supervision is to run concurrently with his burglary sentence

. Respe ctfully 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.Moor e@dallascounty.org, on January 22 , 201 5. I further certify that this document contains 2,5 5 4 words, inclusive of all contents.
I hereby certify that a tru e 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 , 201 5

.

_____ ______________________ KAREN R. WISE10 

### APPENDIXBERNARD 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 1COUNSEL: 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 T EX . C ODE C

RIM

. P ROC . A NN . 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 T EX . R. A PP . 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, *4As MODIFIED , the judgment is

AFFIRMED

. Judgment entered this 17th day of December, 2014. Page 4 2014 Tex. App. LEXIS 13479, *7