Opinion
No. 06-17-00111-CR
01-31-2018
MICHAEL PATRICK HEALY, SR., Appellant v. THE STATE OF TEXAS, Appellee
On Appeal from the 188th District Court Gregg County, Texas
Trial Court No. 45,932-A Before Morriss, C.J., Moseley and Burgess, JJ.
MEMORANDUM OPINION
Michael Patrick Healy, Sr., entered an open plea of guilty to attempted indecency with a child by contact and was sentenced to ten years' incarceration. In a companion case decided of even date herewith, Healy was convicted of indecency with a child by sexual contact and was sentenced to twenty years' incarceration. The trial court ordered the sentences to run concurrently. Healy has filed a single brief in which he raises an issue common to each of his appeals. Healy complains that the trial court erred in cumulating the sentences.
See TEX. PENAL CODE ANN. § 15.01 (West 2011) (criminal attempt); § 21.11(a)(1) (West Supp. 2017) (indecency with a child).
Healy likewise appeals from that conviction in cause number 06-17-00113-CR.
We addressed this issue in detail in our opinion of this date on Healy's appeal in cause number 06-17-00113-CR. For the reasons stated therein, we likewise conclude that error has been shown in stacking Healy's sentences. We, therefore, modify the judgment by deleting the language cumulating the sentence in this case with Healy's sentence in cause number 06-17-00113-CR.
Although Healy does not complain of further error in the judgment, we have the authority to modify judgments to correct errors and make the record speak the truth when the matter has been called to our attention by any source. See TEX. R. APP. P. 43.2(b) (permitting appellate court to modify trial court judgment and affirm, as modified); 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)).
Here, the statute cited for the offense of attempted indecency with a child by contact is Section 21.1(a) (1) of the Texas Penal Code. This is obviously a typographical error, as the Penal Code does not include such a section. Further, Healy was convicted of attempted indecency with a child, rather than indecency with a child. Consequently, the correct statute for the offense of which Healy was convicted is Section 15.01 of the Texas Penal Code. See TEX. PENAL CODE ANN. § 15.01(a) (West Supp. 2017); see Parfait v. State, 120 S.W.3d 348, 351 (Tex. Crim. App. 2003) (person found guilty of an attempted offense is convicted under section 15.01, not underlying Penal Code provision). The judgment's description of the offense as "ATTEMPTED INDECENCY W/A CHILD CONTACT" sufficiently describes the underlying Penal Code provision on which the attempted offense was based. Consequently, we modify the judgment to reflect the correct statute for the offense in this case of attempted indecency with a child by contact as Section 15.01(a) of the Texas Penal Code. TEX. PENAL CODE ANN. § 15.01(a).
This Section of the statute provides, "A person commits an offense if, with specific intent to commit an offense, he does an act amounting to more than mere preparation that tends but fails to effect the commission of the offense intended." TEX. PENAL CODE ANN. § 15.01(a).
In summary, we modify the judgment (1) to reflect the correct statute for the offense as Section 15.01(a) of the Texas Penal Code, and (2) by deleting the language cumulating the sentences.
As modified, we affirm the trial court's judgment.
Ralph K. Burgess
Justice Date Submitted: January 24, 2018
Date Decided: January 31, 2018 Do Not Publish