                    In The
              Court of Appeals
Sixth Appellate District of Texas at Texarkana


                  No. 06-19-00133-CR



          JIMMY WAYNE CARR, Appellant

                           V.

           THE STATE OF TEXAS, Appellee



         On Appeal from the 6th District Court
               Lamar County, Texas
               Trial Court No. 27815




      Before Morriss, C.J., Burgess and Stevens, JJ.
       Memorandum Opinion by Justice Burgess
                                      MEMORANDUM OPINION
           After Jimmy Wayne Carr was found competent to stand trial by David Bell, Ph.D., he was

found guilty by the trial court of possession of child pornography and was sentenced to ten years’

imprisonment. 1 This case was tried with eleven companion cases, which are the subject of other

appeals pending before this Court. Carr filed a single, consolidated brief covering eleven of the

appeals, in which he contends that, since Bell’s qualifications do not appear in his report, there

was insufficient evidence to find him competent to stand trial.

           The argument raised in this appeal is based exclusively on the argument brought before

this Court in the companion appeal styled Carr v. State, cause number 06-19-00126-CR. In our

opinion of this date disposing of that appeal, we found that Carr did not preserve his sole issue for

appeal. For the reasons set out in that opinion, we overrule Carr’s sole issue as it applies to this

appeal.

           Nevertheless, we find, sua sponte, that the trial court’s judgment requires modification.

We have the authority to modify the judgment to make the record speak the truth, even if a party

does not raise the issue. TEX. R. APP. P. 43.2; French v. State, 830 S.W.2d 607, 609 (Tex. Crim.

App. 1992). “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 v. State, 299 S.W.3d 349, 356 (Tex.

App.—Texarkana 2009, no pet.) (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.



1
    See TEX. PENAL CODE ANN. § 43.26(a), (d).
                                                   2
       In this case, the judgment of conviction recites that “THIS SENTENCE SHALL RUN:

CONSECUTIVELY.” However, when the trial court pronounced the sentences in six of the cases

consolidated for trial, including this one, he stated, “All of those sentences will run concurrently.”

When the oral pronouncement of a sentence varies from the written memorialization of that

sentence contained in the written judgment of conviction, the oral pronouncement controls. Coffey

v. State, 979 S.W.2d 326, 328 (Tex. Crim. App. 1998).

       Where there is nonreversible error, we have the authority to modify judgments and affirm

as modified. Walker v. State, 557 S.W.3d 678, 690 (Tex. App.—Texarkana 2018, pet. ref’d). We

modify the trial court’s judgment by changing “THIS SENTENCE SHALL RUN:

CONSECUTIVELY” to “THIS SENTENCE SHALL RUN: CONCURRENTLY.”

       For the reasons stated, we modify the trial court’s judgment by changing “THIS

SENTENCE SHALL RUN:               CONSECUTIVELY” to “THIS SENTENCE SHALL RUN:

CONCURRENTLY.” As modified, we affirm the judgment of the trial court.




                                               Ralph K. Burgess
                                               Justice

Date Submitted:        December 30, 2019
Date Decided:          January 9, 2020

Do Not Publish




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