No. 05-04-00073-CR
Opinion Filed August 16, 2004. DO NOT PUBLISH. Tex.R.App.P. 47.
On Appeal from the 203rd Judicial District Court, Dallas County, Texas, Trial Court Cause No. F01-58704-LP. Affirm as Modified.
Before Justices WRIGHT, O'NEILL, and FRANCIS.
Opinion By Justice WRIGHT.
Hector Jorge Maldonado pleaded nolo contendere to the offense of aggravated assault with a deadly weapon. The trial court assessed punishment at seven years imprisonment and $1500 fine. In two points of error, appellant claims the trial court's judgment incorrectly states appellant entered a negotiated plea and that the trial court erred by failing to orally accept the plea and find appellant guilty. We affirm the trial court's judgment as modified.
BACKGROUND
Appellant was indicted for aggravated assault. On April 30, 2003, appellant entered a non-negotiated plea of nolo contendere. The trial court found the evidence substantiated appellant's guilt as charged in the indictment and recessed for preparation of a presentence investigation report. Punishment hearings were conducted on August 8 and September 25, 2003. The trial court again recessed to consider all of the testimony. On September 29, 2003, the judge assessed punishment at seven years confinement and $1500 fine. At no time did the trial court orally pronounce appellant guilty of the offense. REFORMING THE JUDGMENT
In his first point of error, appellant claims the judgment should be modified to show appellant entered a non-negotiated plea. The State does not oppose modifying the trial court's judgment. The judgment states appellant entered a plea bargain for seven years confinement and $1500 fine. Appellant actually entered a non-negotiated nolo contendere plea. Therefore, the trial court's judgment does not accurately reflect the proceedings. This Court has the power to modify incorrect judgments when it has the necessary information to do so. See Bigley v. State, 865 S.W.2d 26, 27-28 (Tex.Crim.App. 1993); Asberry v. State, 813 S.W.2d 526, 530 (Tex. App.-Dallas 1991, pet. ref'd); see also Tex.R.App.P. 43.2(b). Accordingly, we sustain appellant's first point of error. ORAL ADJUDICATION OF GUILT
In his second point, appellant asserts the trial court erred by failing to orally accept the plea and find appellant guilty. Appellant claims the recitation in the judgment that the court found him guilty is refuted by the reporter's record which shows no finding was made. The State responds that the trial court did not err. We agree with the State. "When the trial judge, after admonishing the appellant, accepting appellant's pleas, and hearing the State's evidence, held the assessment of punishment in abeyance and ordered a presentence investigation, he necessarily implied that he had found the appellant guilty." Villela v. State, 564 S.W.2d 750, 751 (Tex.Crim.App. [Panel Op.] 1978). In this case, the trial court fully admonished appellant, accepted his nolo contendere plea, and admitted the State's evidence. The trial judge necessarily found appellant guilty at the September 29, 2003 hearing when he sentenced appellant to imprisonment. See Villela, 564 S.W.2d at 751; Harling v. State, 899 S.W.2d 9, 11 (Tex. App.-San Antonio 1995, pet. ref'd). The recitation in the judgment is supported by the trial court's actions. See Villela, 564 S.W.2d at 751. To the extent appellant claims that because there was no oral pronouncement of guilt, it is unclear whether appellant was convicted of and punished for the charged offense or a lesser-included offense, we find the complaint without merit. Appellant pleaded nolo contendere and judicially confessed to aggravated assault with a deadly weapon, a second-degree felony, as alleged in the indictment. The judgment clearly states that appellant was convicted of aggravated assault, a second-degree felony, and the judgment includes an affirmative finding that appellant used or exhibited a deadly weapon during the commission of the offense. There is, therefore, no confusion as to the offense appellant was convicted of and punished for committing. We overrule appellant's second point of error. We modify the portion of the trial court's judgment entitled "terms of plea bargain" to state "open." As modified, we affirm the trial court's judgment.