AFFIRMED as MODIFIED and Opinion Filed October 10, 2019




                                             S   In The
                                  Court of Appeals
                           Fifth District of Texas at Dallas
                                          No. 05-18-01338-CR
                                          No. 05-18-01339-CR

                                 JOSE LUIS CABALLERO, Appellant
                                              V.
                                  THE STATE OF TEXAS, Appellee

                        On Appeal from the 204th Judicial District Court
                                      Dallas County, Texas
                        Trial Court Cause Nos. F18-00239-Q, F18-00240-Q

                                  MEMORANDUM OPINION
                                Before Justices Myers, Osborne, and Nowell
                                        Opinion by Justice Osborne
         Appellant was charged with two offenses: driving while intoxicated (DWI), a third

offense,1 and aggravated assault with a deadly weapon.2 Following a jury trial, appellant was

convicted for both offenses. He was sentenced to ten years’ imprisonment on the DWI case and to

twenty years’ imprisonment on the aggravated assault case.

         In two issues on appeal, appellant asks this Court to modify the judgments in both of his

convictions to reflect that the trial court entered an affirmative deadly weapon finding pursuant to

TEX. CODE CRIM. PROC. ANN. art. 42A.054(c). In his third issue, appellant asks this Court to




   1
       Cause No. F18-00239-Q.
   2
       Cause No. F18-00240-Q.
modify the judgment in his DWI conviction to reflect that the correct statute for the offense is TEX.

PENAL CODE ANN. § 49.09(b)(2). The State does not oppose these requests.

        Because the underlying facts are known to the parties and are not necessary for disposition

of the appeal, we will not recite them in this memorandum opinion. TEX. R. APP. P. 47.1.

                               Special Finding on Deadly Weapon

        Both the indictment for DWI and the indictment for aggravated assault alleged that

appellant used or exhibited “a deadly weapon, to wit: A MOTOR VEHICLE” during his

commission of the respective offenses. Appellant entered pleas of guilty to both offenses and

judicially confessed that he committed both offenses “exactly as alleged in the indictment.”

Appellant also entered pleas of true to the deadly weapon allegations contained in the indictments.

        The jury found appellant guilty of both offenses “as charged in the indictment.” Therefore,

the jury made an affirmative deadly weapon finding in each case. See Polk v. State, 693 S.W.2d

391, 394 (Tex. Crim. App. 1985); Roots v. State, 419 S.W.3d 719, 724 (Tex. App.—Fort Worth

2013, pet. ref’d).

        In pronouncing its sentences, the trial court said: “the Court will make an affirmative

finding that a deadly weapon was used or exhibited, namely an automobile, in each of these cases.”

The special findings section of each judgment accurately reflects the trial court’s affirmative

deadly weapon finding. That section identifies the relevant statute as “TEX. CODE CRIM. PROC. art.

42.12, §3g.”

        Article 42.12 of the Code of Criminal Procedure was repealed and replaced with Chapter

42A, effective January 1, 2017. See Act of June 17, 2015, 84th Leg., R.S., ch. 770, § 1.01, eff. Jan.

1, 2017. The statutory provision relevant to the trial court’s entry of an affirmative deadly weapon

finding is now codified in TEX. CODE CRIM. PROC. ANN. art. 42A.054(c) (providing “[o]n an




                                                –2–
affirmative finding regarding the use or exhibition of a deadly weapon as described by Subsection

(b), the trial court shall enter the finding in the judgment of the court.”).

        The indictments in both cases alleged that the offenses were committed on February 2,

2018. Judgment in these cases was entered on October 3, 2018. Hence, article 42A.054(c) was the

applicable statute.

        We have the authority to modify an incorrect judgment when the evidence necessary to

correct that judgment appears in the record. 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 both judgments to read “TEX. CODE CRIM. PROC. ANN.

art. 42A.054(c)” in the special findings field of the judgments.

                              Correct Offense for DWI, 3rd Offense

        Here, appellant was charged with, and convicted of, a third DWI offense. The offense of

DWI is proscribed by TEX. PENAL CODE ANN. § 49.04(a).

        The judgment in the DWI case reflects that the “Statute for Offense” is “49.09 Penal Code.”

Section 49.09 of the Penal Code is the statute for DWI “Enhanced Offenses and Penalties” and

provides, in part, as follows:

        (b) An offense under Section 49.04, 49.05, 49.06 or 49.065 is a felony of the third
        degree if it is shown on the trial of the offense that the person has previously been
        convicted:

        (2) two times of any other offense relating to the operating of a motor vehicle while
        intoxicated, operating an aircraft while intoxicated, operating a watercraft while
        intoxicated, or operating or assembling an amusement ride while intoxicated.

TEX. PENAL CODE ANN. § 49.09(b)(2). This statutory provision enhances a misdemeanor DWI

offense to a third degree felony if a defendant has two prior DWI convictions. Because appellant

has two prior convictions for DWI, this provision applies. While the recitation of “49.09 Penal




                                                  –3–
Code” is not incorrect, the judgment would be more complete if it recited the specific code

provision, i.e., Section 49.09(b)(2).

       Additionally, the applicable statutory provisions for the offense of DWI include TEX.

PENAL CODE ANN. § 49.04(a), the statutory provision that defines the offense of DWI.

       As noted above, this Court has authority to modify incorrect judgments when the necessary

information is available to do so. TEX. R. APP. P. 43.2(b); Bigley, 865 S.W.2d at 27-28; Asberry,

813 S.W.2d at 529-30. Accordingly, we modify the judgment in the DWI case to reflect that the

“Statute for Offense” is “49.04(a), 49.09(b)(2) Penal Code.”

                                          Conclusion

       The trial court’s judgments, as modified, are affirmed.




                                                 /Leslie Osborne/
                                                 LESLIE OSBORNE
                                                 JUSTICE

Do Not Publish
TEX. R. APP. P. 47.2(b)
181338F.U05




                                              –4–
                                        S
                               Court of Appeals
                        Fifth District of Texas at Dallas
                                       JUDGMENT

 JOSE LUIS CABALLERO, Appellant                     On Appeal from the 204th Judicial District
                                                    Court, Dallas County, Texas
 No. 05-18-01338-CR         V.                      Trial Court Cause No. F-1800239-Q.
                                                    Opinion delivered by Justice Osborne.
 THE STATE OF TEXAS, Appellee                       Justices Myers and Nowell participating.

        Based on the Court’s opinion of this date, the judgment of the trial court is MODIFIED
as follows:

       “Tex. Code Crim. Proc. art. 42.12 §3g” is replaced with “Tex. Code Crim. Proc.
       Ann. art. 42A.054(c)” in the “Special Findings” field.

       And

       “49.09 Penal Code” is replaced with “49.04(a), 49.09(b)(2) Penal Code” in the “Statute for
       Offense” field.

As REFORMED, the judgment is AFFIRMED.


Judgment entered October 10, 2019




                                              –5–
                                        S
                               Court of Appeals
                        Fifth District of Texas at Dallas
                                      JUDGMENT

 JOSE LUIS CABALLERO, Appellant                     On Appeal from the 204th Judicial District
                                                    Court, Dallas County, Texas
 No. 05-18-01339-CR         V.                      Trial Court Cause No. F-1800240-Q.
                                                    Opinion delivered by Justice Osborne.
 THE STATE OF TEXAS, Appellee                       Justices Myers and Nowell participating.

        Based on the Court’s opinion of this date, the judgment of the trial court is MODIFIED
as follows:

       “Tex. Code Crim. Proc. art. 42.12 §3g” is replaced with “Tex. Code Crim. Proc.
       Ann. art. 42A.054(c)” in the “Special Findings” field.

As REFORMED, the judgment is AFFIRMED.


Judgment entered October 10, 2019




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