Summary
modifying judgment nunc pro tunc that contained clerical error
Summary of this case from Kitchen v. StateOpinion
No. 06-16-00153-CR
04-27-2017
NATHANIEL NORRIS, Appellant v. THE STATE OF TEXAS, Appellee
On Appeal from the 76th District Court Morris County, Texas
Trial Court No. 11,424CR Before Morriss, C.J., Moseley and Burgess, JJ.
Memorandum Opinion by Justice Moseley MEMORANDUM OPINION
Nathaniel Norris was convicted by a jury of sexual assault of a child and sentenced to five years' imprisonment. On appeal, Norris argues that the trial court erred (1) in admitting allegedly unauthenticated Facebook Messenger texts sent by cell phone and (2) in assessing court costs in this case, and all companion cases, even though they were consolidated for trial.
Norris also appeals one conviction of indecency with a child entered in companion cause number 06-16-00150-CR, two other convictions of sexual assault of a child entered in companion cause numbers 06-16-00151-CR and 06-16-00152-CR, and one conviction for aggravated sexual assault of a child entered in companion cause number 06-16-00154-CR.
We addressed these issues in detail in our opinion of this date on Norris' appeal in cause number 06-16-00150-CR. For the reasons stated therein, we likewise conclude that the trial court did not abuse its discretion in overruling Norris' objection of improper authentication in this case, and further find that Norris' second issue is moot, since the trial court entered a judgment nunc pro tunc removing the assessment of court costs.
However, we note that in entering the judgment nunc pro tunc, the trial court mistakenly listed the incorrect statute of offense for which Norris was convicted. We have the authority to modify the judgment to make the record speak the truth when the matter has been called to our attention by any source. TEX. R. APP. P. 43.2; French v. State, 830 S.W.2d 607, 609 (Tex. Crim. App. 1992); Rhoten v. State, 299 S.W.3d 349, 356 (Tex. App.—Texarkana 2009, no pet.). "Our authority to reform incorrect judgments is not dependent on the request of any party, nor does it turn on a question of whether a party has or has not objected in trial court; we may act sua sponte and may have a duty to do so." Rhoten, 299 S.W.3d at 356 (citing Asberry v. State, 813 S.W.2d 526, 531 (Tex. App.—Dallas 1991, pet. ref'd); see French, 830 S.W.2d at 609.
Accordingly, we modify the trial court's judgment nunc pro tunc to reflect that Norris was convicted under Section 22.011 of the Texas Penal Code, instead of Section 22.11. See TEX. PENAL CODE ANN. § 22.011(West 2011), § 22.11 (West Supp. 2016). We affirm the judgment, as modified.
Bailey C. Moseley
Justice Date Submitted: April 21, 2017
Date Decided: April 27, 2017 Do Not Publish