Kelwin Dabney v. the State of Texas

NO. 12-22-00200-CR

IN THE COURT OF APPEALS

TWELFTH COURT OF APPEALS DISTRICT

TYLER, TEXAS

KELWIN DABNEY, § APPEAL FROM THE 349TH
APPELLANT

V. § JUDICIAL DISTRICT COURT

THE STATE OF TEXAS,
APPELLEE § ANDERSON COUNTY, TEXAS

MEMORANDUM OPINION
Kelwin Dabney appeals the trial court’s order revoking his deferred adjudication
community supervision for the offense of prohibited item in a correctional facility. In one issue,
he argues that the trial court’s judgment contains certain clerical errors that require this Court to
reform the judgment. We modify the judgment, and affirm the judgment as modified.

BACKGROUND
Appellant was indicted for two counts of possession of a prohibited substance in a
correctional facility in Anderson County, Texas, alleged to have been committed on or about the
12th day of June, 2014. 1 The indictment contained enhancement allegations, which if proven,
elevated the punishment range from a third degree felony, punishable by not less than two nor
more than ten years of imprisonment, to a second degree felony, punishable by not less than two
nor more than twenty years of imprisonment. 2

1
See TEX. PENAL CODE ANN. § 38.11(j) (West Supp. 2022) (“A person commits an offense if the person,
while confined in a correctional facility, possesses a cellular telephone or other wireless communications device or a
component of one of those devices.”).
2
See id. §§ 12.33 (West 2019) (second degree felony punishment),12.34(a) (West 2019), (third degree
felony punishment), 12.42(a) (West 2019) (...if it is shown on the trial of a felony of the third degree that the
defendant has previously been finally convicted of a felony other than a state jail felony...on conviction the
Appellant entered a plea agreement with the State wherein he agreed to plead “guilty” to
one count in exchange for the State’s recommendation of ten years deferred adjudication
community supervision with a $1,500 fine and a dismissal of the second count in the indictment
and another pending charge. On June 24, 2016, Appellant entered his plea of “guilty” and the
trial court followed the State’s recommendation, deferred a finding of guilt, and placed Appellant
on community supervision for a period of ten years with a fine of $1,500 along with other terms
and conditions. The State filed motions to dismiss count two of the indictment and the other
pending case, which the trial court signed and ordered dismissed.
In March 2017, the State filed a motion to adjudicate Appellant’s guilt, and alleged
Appellant committed numerous violations of his community supervision. Appellant was
released on a surety bond pending a hearing on the State’s motion and absconded. Thereafter,
the surety asked the trial court to be released from the bond and surrender Appellant because
Appellant failed to report weekly and reply to mail correspondence. A warrant was issued for
Appellant’s arrest and he was brought before the trial court on June 10, 2022 for a hearing on the
State’s amended motion to adjudicate guilt.
Appellant pleaded “true” to committing the offense of resisting arrest while on
community supervision, failing to report, failing to pay supervision fees, failing to pay court
costs and the fine, and failing to pay the “crime stoppers” fee (allegations one, four, twenty,
twenty-one, and twenty-two, respectively). He pleaded “not true” to failing to report a change of
address to his community supervision officer and failing to perform community service
(allegations six and fifteen, respectively).
After accepting Appellant’s pleas of “true” and “not true,” the trial court heard evidence,
including the testimony of witnesses called by both the State and the defense. At the conclusion
of the hearing, the trial court found all the allegations in the State’s application to be “true,”
found Appellant “guilty” of the charged offense, and sentenced him to eight years of
imprisonment. This appeal followed.

defendant shall be punished for a felony of the second degree.”), 38.11(g) (“An offense under this section is a felony
of the third degree”).

2
ERRORS IN THE JUDGMENT
In one issue, Appellant argues that the trial court’s judgment adjudicating guilt contains
certain clerical errors and prays this Court reform the judgment to make it speak the truth.
Specifically, Appellant argues that the judgment

Incorrectly states the date of the charged offense as February 13, 2013, when the offense was
committed on June 12, 2014.
Incorrectly states that Appellant entered pleas of “true” to allegations six and fifteen, when he
actually pleaded “not true” to those allegations at the hearing.
Incorrectly states that Appellant entered into a plea bargain with the State for eight years of
imprisonment, when in fact, the Appellant and the State had no such agreement, and the
sentencing was left to the discretion of the trial court.

We have reviewed the record and conclude that Appellant is correct in his assertions.
We have the authority to modify the judgment to make the record speak the truth when
we have the necessary data and information to do so. Ingram v. State, 261 S.W.3d 749, 754
(Tex. App.—Tyler 2008, no pet.); Davis v. State, 323 S.W.3d 190, 198 (Tex. App.–Dallas 2008,
pet. ref’d). Moreover, Texas Rule of Appellate Procedure 43.2 expressly authorizes an appellate
court to modify the trial court’s judgment. TEX. R. APP. P. 43.2. In this case, the clerk’s record
and reporter’s record provide this Court with the necessary data and information to modify the
judgment to reflect that Appellant committed the offense on June 12, 2014, pleaded “true” to
allegations one, four, twenty, twenty-one, and twenty-two and “not true” to allegations six and
fifteen, and the case was not a plea bargain. See id.; see also Bigley v. State, 865 S.W.2d 26, 27–
28 (Tex. Crim. App. 1993); Asberry v. State, 813 S.W.2d 526, 529–30 (Tex. App.–Dallas 1991,
pet. ref’d). We sustain Appellant’s sole issue.

DISPOSITION
Having sustained Appellant’s sole issue, we modify the judgment to delete “February 13,
2013” as the Date of Offense and replace it with “June 12, 2014.” We further modify the
judgment to delete “true” under the Plea to Motion to Adjudicate and enter the correct pleas of
“true to allegations one, four, twenty, twenty-one, and twenty-two” and “not true to allegations
six and fifteen.” Finally, we modify the Terms of Plea Bargain to delete “In exchange for his
plea of true to the allegations set forth in the Motion to Adjudicate (and all amendments thereto),

3
the Defendant would be sentenced to a term of Eight (8) years in the Texas Department of
Criminal Justice—Institutional Division with credit” and replace it with “no plea bargain.” We
affirm the judgment as modified.

JAMES T. WORTHEN
Chief Justice

Opinion delivered November 9, 2022.
Panel consisted of Worthen, C.J., Hoyle, J., and Neeley, J.

(DO NOT PUBLISH)

4
COURT OF APPEALS

TWELFTH COURT OF APPEALS DISTRICT OF TEXAS

JUDGMENT

NOVEMBER 9, 2022

NO. 12-22-00200-CR

KELWIN DABNEY,
Appellant
V.
THE STATE OF TEXAS,
Appellee

Appeal from the 349th District Court
of Anderson County, Texas (Tr.Ct.No. 349CR-16-32,681)

THIS CAUSE came to be heard on the appellate record and the briefs filed
herein, and the same being considered, it is the opinion of this court that the judgment of the
court below should be modified and as modified, affirmed.
It is therefore ORDERED, ADJUDGED and DECREED that the judgment
of the court below be modified to delete “February 13, 2013” as the Date of Offense and replace
it with “June 12, 2014.” We further modify the judgment to delete “true” under the Plea to
Motion to Adjudicate and enter the correct pleas of “true to allegations one, four, twenty, twenty-
one, and twenty-two” and “not true to allegations six and fifteen.” We further modify the Terms
of Plea Bargain to delete “In exchange for his plea of true to the allegations set forth in the
Motion to Adjudicate (and all amendments thereto), the Defendant would be sentenced to a term
of Eight (8) years in the Texas Department of Criminal Justice—Institutional Division with
credit” and replace it with “no plea bargain.”; in all other respects the judgment of the trial court
is affirmed; and that this decision be certified to the court below for observance.
James T. Worthen, Chief Justice.
Panel consisted of Worthen, C.J., Hoyle, J., and Neeley, J.