Opinion
No. 05-03-00924-CR
Opinion Filed July 22, 2004. DO NOT PUBLISH. Tex.R.App.P. 47.
On Appeal from the 291st Judicial District Court, Dallas County, Texas, Trial Court Cause No. F98-68954-Wmu. Set Aside In Part, Affirmed As Modified In Part.
Before Justices MOSELEY, BRIDGES, and LANG-MIERS.
MEMORANDUM OPINION
In 1998, Victor Lopez DeLeon, Jr. entered a negotiated guilty plea to the offense of indecency with a child younger than seventeen years. Pursuant to the plea bargain agreement, the trial court deferred adjudication of appellant's guilt, placed him on community supervision for ten years, and assessed a $1000 fine. In 2003, the State filed a "motion to revoke probation or proceed with an adjudication of guilt" alleging appellant had violated several conditions of community supervision. Appellant entered pleas of "not true" to the allegations. After hearing evidence, the trial court determined the allegations were true and adjudicated appellant guilty. After hearing punishment testimony, the trial court assessed punishment at twenty years confinement. Appellant now appeals the trial court's judgment. Appellant's attorney filed a brief in which he concludes the appeal is wholly frivolous and without merit. The brief meets the requirements of Anders v. California, 386 U.S. 738 (1967). The brief presents a professional evaluation of the record showing why, in effect, there are no arguable grounds to advance. See High v. State, 573 S.W.2d 807, 811 (Tex.Crim.App. [Panel Op.] 1978). Counsel delivered a copy of the brief to appellant. We advised appellant he has a right to file a pro se response. Appellant, however, did not file a pro se response. We have reviewed the record and counsel's brief. We agree the appeal is frivolous and without merit. We find nothing in the record that might arguably support the appeal. We will, however, correct clerical errors in the trial court's judgment. Initially, the trial court entered a "judgment adjudicating guilt" that assessed costs against appellant and described the offense as "indecency with a child younger than 14 years/cont." Subsequently, the trial court entered a nunc pro tunc "judgment revoking community supervision" changing the description of the offense to "indecency with a child younger than 17 years/cont" and eliminating the assessment for costs. At the top of the nunc pro tunc judgment is the explanatory notation: "6/25/03 E/O NUNC PRO TUNC CORRECTING OFFENSE TO BE IND WITH A CHILD YOUNGER THAN 17 YEARS/CONT AND TO DELETE COST 399/14." Although the nunc pro tunc judgment corrected the targeted errors, it created a new problem in that the judgment form the trial court used is structured to document judgments entered after revocation of regular community supervision. We have the authority to modify incorrect judgments when the necessary information is available to do so. See Tex.R.App.P. 43.2(b); Bigley v. State, 865 S.W.2d 26, 27-28 (Tex.Crim.App. 1993); Asberry v. State, 813 S.W.2d 526, 529 (Tex.App.-Dallas 1991, pet. ref'd). Accordingly, we set aside the trial court's "judgment revoking community supervision." We reinstate the trial court's "judgment adjudicating guilt" and we modify the reinstated judgment adjudicating guilt to reflect appellant was convicted of "indecency with a child younger than 17 years/cont" and costs were not assessed against appellant. As modified, we affirm the trial court's judgment adjudicating guilt.