NUMBER 13-25-00105-CR
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI – EDINBURG
ANTONIO SUAREZ III, Appellant,
v.
THE STATE OF TEXAS, Appellee.
ON APPEAL FROM THE 347TH DISTRICT COURT
OF NUECES COUNTY, TEXAS
MEMORANDUM OPINION
Before Chief Justice Tijerina and Justices Silva and Cron
Memorandum Opinion by Justice Cron
A jury convicted appellant Antonio Suarez III of assault on a family member with a
prior conviction, a third-degree felony. See TEX. PENAL CODE § 22.01(b)(2)(A). The jury
also found that Suarez was a repeat felony offender, thereby enhancing the punishment
range for the offense to that of a second-degree felony, and sentenced him to a prison term of sixteen years. See id. § 12.42(a). By a single issue, Suarez contends that the
evidence was legally insufficient to prove beyond a reasonable doubt that he was
previously convicted of a prior offense because the evidence introduced during the guiltinnocence phase of trial only showed that he previously received deferred adjudication
for continuous violence against the family. He notes that it was not until the punishment
phase of trial that the State proved that he was ultimately adjudicated guilty of that offense
after his community supervision was revoked. He asks that we modify the judgment to
reflect a conviction for the lesser included offense of simple assault and remand the case
to the trial court for a new punishment hearing.
We affirm Suarez’s conviction. However, on our own motion, we modify the
judgment to correct a clerical error.
I. BACKGROUND
The State alleged that Suarez assaulted his then-girlfriend on July 13, 2019, and
that he was previously convicted of assaulting a family member “on the 7th day of April
2011, in the 214th District Court of Nueces County, Texas, in cause number 11-CR-0655-F.” At trial, the State called Detective Mike Manzano with the Corpus Christi Police
Department to testify about Suarez’s prior conviction. Through this witness, the State
introduced into evidence a certified copy of an Order of Deferred Adjudication entered on
April 7, 2011, in cause number 11-CR-0655-F for the offense of continuous violence
against the family. The order reflects that Suarez pleaded guilty to the offense and was
placed on deferred-adjudication community supervision for a period of ten years. The
order was accompanied by a plea agreement between Suarez and the State showing that
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the State recommended deferred-adjudication community supervision in exchange for
Suarez’s guilty plea.
II. STANDARD OF REVIEW & APPLICABLE LAW
To satisfy constitutional due process requirements, a criminal conviction must be
supported by sufficient evidence. Laster v. State, 275 S.W.3d 512, 517 (Tex. Crim. App.
2009). “Evidence is sufficient to support a criminal conviction if a rational jury could find
each essential element of the offense beyond a reasonable doubt.” Stahmann v. State,
602 S.W.3d 573, 577 (Tex. Crim. App. 2020) (citing Jackson v. Virginia, 443 U.S. 307,
319 (1979)). In conducting a sufficiency review, we view the evidence in the light most
favorable to the verdict to determine whether any rational trier of fact could have found
the essential elements of the crime beyond a reasonable doubt. Zuniga v. State, 551
S.W.3d 729, 732 (Tex. Crim. App. 2018). We consider all the evidence in the record,
regardless of whether the evidence was properly or improperly admitted. Clayton v. State,
235 S.W.3d 772, 778 (Tex. Crim. App. 2007).
We measure the sufficiency of the evidence against “the elements of the offense
as defined by the hypothetically correct jury charge for the case.” Malik v. State, 953
S.W.2d 234, 240 (Tex. Crim. App. 1997). A hypothetically correct charge is one that
accurately sets out the law, is authorized by the indictment, does not unnecessarily
increase the State’s burden of proof or restrict its theories of liability, and adequately
describes the particular offense for which the defendant was tried. Id.
Normally a Class A misdemeanor, simple assault becomes a third-degree felony
if the State proves that the defendant was in a dating relationship with the complainant
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and that the defendant was “previously convicted” of a similar offense, including
continuous violence against the family. See TEX. PENAL CODE §§ 22.01(b)(2)(A)(ii)(a),
25.11. The prior conviction is an element of the felony offense that must be proven beyond
a reasonable doubt during the guilt-innocence phase of the trial. Holoman v. State, 620
S.W.3d 141, 147 (Tex. Crim. App. 2021) (concluding that the prior conviction is an
elemental aggravating fact rather than a punishment issue).
III. ANALYSIS
Suarez does not dispute that the evidence establishes that he was in a dating
relationship with the complainant, that continuous violence against the family is a listed
offense under section 22.01(b)(2)(A), or that the State proved beyond a reasonable doubt
that Suarez was the defendant in cause number 11-CR-0655-F. Instead, Suarez argues
that an order of deferred adjudication is insufficient to prove that he was “previously
convicted” of that offense. See TEX. PENAL CODE § 22.01(b)(2)(A). Deferred adjudication
“is not a conviction for most purposes.” Middleton v. State, 634 S.W.3d 46, 51 (Tex. Crim.
App. 2021). However, as the State correctly points out, “previously convicted” is a
statutorily defined term that includes a defendant who “entered a plea of guilty or nolo
contendere in return for a grant of deferred adjudication, regardless of whether the
sentence for the offense was ever imposed or whether the sentence was probated and
the defendant was subsequently discharged from community supervision.” TEX. PENAL
CODE § 22.01(f)(1). Therefore, the Order of Adjudication in cause number 11-CR-0655-F
and the accompanying plea agreement were legally sufficient to prove beyond a
reasonable doubt that Suarez was “previously convicted” of continuous violence against
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the family. See id. Suarez’s issue is overruled.
IV. MODIFICATION
A court of appeals “has the power to modify the trial court’s written judgment of
conviction to make the record ‘speak the truth.’” Smith v. State, 733 S.W.3d 871, 876
(Tex. App.—Houston [14th Dist.] 2026, pet. ref’d) (quoting Carmona v. State, 610 S.W.3d
611, 618 (Tex. App.—Houston [14th Dist.] 2020, no pet.)). This authority, which we may
exercise sua sponte, includes correcting a judgment that fails to reflect the jury’s findings.
Id.
Here, the State alleged for enhancement purposes that Suarez was a repeat felony
offender, and the jury found the allegation “true.” See TEX. PENAL CODE § 12.42(a). Yet,
the judgment of conviction does not include this finding. See TEX. CODE CRIM. PROC. art.
42.01, § 1 (listing the necessary contents of a judgment). On its face, the judgment
indicates that Suarez was sentenced to sixteen years in prison for a third-degree felony,
making it appear as though Suarez received an illegal sentence. See TEX. PENAL CODE
§ 12.34(a) (providing that the maximum term of imprisonment for a third-degree felony is
ten years); Mizell v. State, 119 S.W.3d 804, 806 (Tex. Crim. App. 2003) (“A sentence that
is outside the maximum or minimum range of punishment is unauthorized by law and
therefore illegal.”). Accordingly, we modify the judgment as follows: under “Degree of
Offense,” we modify “3RD DEGREE FELONY” to read “3RD DEGREE FELONY
ENHANCED TO A SECOND DEGREE”; under “1st Enhancement Paragraph,” we strike
“N/A” and replace it with “Repeat Felony Offender”; and under “Finding on 1st
Enhancement Paragraph,” we strike “N/A” and replace it with “True.” See Smith, 733
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S.W.3d at 876.
V. CONCLUSION
We affirm the judgment of conviction as modified.
JENNY CRON
Justice
Do not publish.
TEX. R. APP. P. 47.2(b).
Delivered and filed on the
30th day of July, 2026.
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