Opinion
No. 05-05-00081-CR
Opinion issued September 13, 2005. DO NOT PUBLISH. Tex.R.App.P. 47.
On Appeal from the 282nd Judicial District Court, Dallas County, Texas, Trial Court Cause No. F03-53681-LS. Affirmed as Modified.
Before Justices FITZGERALD, LANG-MIERS, and MAZZANT.
OPINION
David Norman Hazlitt waived a jury trial and entered a negotiated guilty plea to burglary of a habitation. See Tex. Pen. Code Ann. § 30.02 (Vernon 2003). Pursuant to the plea agreement, the trial court sentenced appellant to ten years' confinement, probated for ten years, and a $2000 fine. The State subsequently moved to revoke appellant's community supervision, alleging appellant committed three new offenses and other violations. The trial court found the allegations true, revoked appellant's community supervision, and assessed punishment at ten years' confinement and a $2000 fine. In two issues, appellant contends the trial court failed to pronounce sentence in his presence and the judgment should be modified to show that a magistrate did not preside over the revocation hearing. As modified, we affirm the trial court's judgment. In his first issue, appellant asserts that the trial judge did not pronounce sentence in his presence because the judge did not order the ten-year sentence carried into execution. The State responds that appellant failed to preserve this issue for review and, in the alternative, that the trial court's pronouncements were proper. Appellant did not complain about the manner in which the trial court pronounced sentence either at the time the sentence was imposed or in his motion for new trial. See Tex.R.App.P. 33.1(a)(1). Thus, he has not preserved this complaint for review. Furthermore, in assessing punishment the judge said, "I just don't think probation would work for you . . . so I'm going to go ahead and sentence you to 10 years in the penitentiary." The judgment shows the sentence started on the same day it was pronounced. We conclude the trial court complied with article 42.03, section 1. See Tex. Code Crim. Proc. Ann. art. 42.03 § 1(a) (Vernon Supp. 2004-05). We resolve appellant's first issue against him. In his second issue, appellant asserts the judgment should be modified to show that the elected judge of the 282nd Judicial District Court presided over the revocation hearing and not a magistrate judge. The State responds that the judgment should not be modified because it correctly reflects the proceedings. We disagree. The judgment revoking community supervision states "referral to magistrate." However, the record shows that the Honorable Karen J. Greene, who is the presiding judge of the 282nd Judicial District Court, presided over the revocation hearing on December 17, 2004. Thus, the trial court's judgment does not correctly reflect the proceedings. We resolve appellant's second issue in his favor. We have the power to modify incorrect judgments when we have the necessary information 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, 529-30 (Tex.App.-Dallas 1991, pet. ref'd). Accordingly, we modify the trial court's judgment to delete the section entitled "Magistrate." As modified, we affirm the trial court's judgment.