Opinion
No. 05-10-01095-CR
Opinion Filed April 28, 2011. DO NOT PUBLISH. Tex. R. App. P. 47
On Appeal from the 194th Judicial District Court, Dallas County, Texas, Trial Court Cause No. F04-27938-M.
Before Justices MORRIS, MOSELEY, and FITZGERALD.
MEMORANDUM OPINION
Reginald Jawaan Sells appeals from the adjudication of his guilt for burglary of a habitation. In two points of error, appellant contends the order of deferred adjudication and the trial court's judgment adjudicating guilt should be modified. We affirm the judgment adjudicating guilt as modified. The background of the case and the evidence adduced at trial are well known to the parties, and therefore we limit recitation of the facts. We issue this memorandum opinion pursuant to Texas Rule of Appellate Procedure 47.4 because the law to be applied in the case is well settled. Appellant waived a jury and pleaded guilty to burglary of a habitation. See Tex. Penal Code Ann. § 30.02(a)(1) (West 2003). Pursuant to a plea agreement, the trial court deferred adjudicating guilt, placed appellant on five years' community supervision, and assessed a $2,500 fine. The State later moved to adjudicate guilt, alleging appellant violated the conditions of his community supervision. Appellant pleaded true to all the allegations in a hearing on the motion. The trial court found the allegations true, adjudicated appellant guilty, and assessed punishment at ten years' imprisonment. In his first point of error, appellant contends the order of deferred adjudication should be modified to reflect the trial court's oral pronouncement of $600 in restitution. In his second point of error, appellant contends the judgment adjudicating guilt should be modified to recite the correct the name of the State's attorney. The State agrees that the judgment adjudicating guilt should be modified as proposed by appellant. Once the trial court adjudicated appellant's guilt, the deferred adjudication order was no longer in effect. See Taylor v. State, 131 S.W.3d 497, 502 (Tex. Crim. App. 2004); McCoy v. State, 81 S.W.3d 917, 919 (Tex. App.-Dallas 2002, pet. ref'd). A trial court's judgment adjudicating guilt expressly sets aside the underlying deferred adjudication order and declares it to be "of no further force and effect." See McCoy, 81 S.W.3d at 919. Therefore, there is no longer an order in effect requiring modification. We overrule appellant's first point of error. The record shows the State was represented by Soinkne Lewis at the hearing on the motion to adjudicate. The judgment adjudicating guilt recites that "Marshall McCallum" appeared as the attorney for the State. Thus, the written judgment is incorrect. We sustain appellant's second point of error. We modify the judgment adjudicating guilt to show Soinkne Lewis was the attorney for the State. 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). As modified, we affirm the trial court's judgment adjudicating guilt.