MODIFY and AFFIRM; and Opinion Filed December 3, 2013.




                                         S   In The
                               Court of Appeals
                        Fifth District of Texas at Dallas
                                      No. 05-12-00552-CR

                           LARRY DARNELL PRICE, Appellant
                                        V.
                            THE STATE OF TEXAS, Appellee

                      On Appeal from the 203rd Judicial District Court
                                   Dallas County, Texas
                           Trial Court Cause No. F11-30771-P

                             MEMORANDUM OPINION
                         Before Justices O'Neill, Lang-Miers, and Evans
                                 Opinion by Justice Lang-Miers
       A jury found appellant Larry Darnell Price guilty of aggravated sexual assault of a child

under 14 years of age, found an enhancement paragraph true, and assessed a mandatory

punishment of life in prison. The trial court’s judgment also assesses $244 in court costs against

appellant. On appeal appellant argues that (1) the trial court abused its discretion when it

precluded appellant’s counsel from questioning potential jurors about their “ability to disregard

the consequences of parole,” (2) the evidence is insufficient to support the assessment of court

costs against appellant, and (3) the judgment should be modified to correct multiple errors. We

modify the judgment as described below and affirm as modified.
                                           FIRST ISSUE

       In his first issue appellant argues that the trial court abused its discretion when it did not

allow his counsel to question the venire regarding “whether they could disregard the

consequences of parole during their deliberations.” In response, the State argues, in part, that

appellant cannot show error on appeal because the record does not reflect the denial of any

particular question. We agree with the State.

       Background

       Before voir dire appellant’s counsel objected to an apparent prior ruling that the trial

court made off the record concerning the general topic of “parole implications”:

       Your Honor, I’m objecting from the Court’s ruling that I can’t discuss the parole
       implications during voir dire with the prospective veniremen.               It’s my
       understanding that whatever sentence the jury gives him, that Mr. Price will have
       to serve it day for day. And I think that that is the issue that should be explored.
       We might find some people that we can strike for cause—or we have some
       serious issues with deliberating on the case if they found that out later, once
       they’re actually on the jury.

In response, the trial court stated that it would not allow the defense “to go into anything

regarding sentencing and parole in voir dire.” After voir dire, and after the jurors were chosen

but before they were sworn in, appellant’s counsel “object[ed] to the panel members” on the

ground that he should have been allowed to ask them “whether or not that would make a

difference to them if they knew that they were deciding a case where the person would have to

do day for day time or whether or not the person would be eligible for parole.”

       Analysis

       The record suggests that appellant’s counsel told the trial court before voir dire that he

wanted to discuss “parole implications” with prospective jurors. Generally, where counsel states

a subject area in which he wishes to propound questions, but does not present the trial court with

the specific questions he wishes to ask, “the trial court is denied an opportunity to make a


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meaningful ruling and error is not preserved.”                In re Commitment of Tesson,

No. 09-11-00709-CV, 2013 WL 5651804, at *2 (Tex. App.—Beaumont Oct. 17, 2013, no pet.)

(internal quotations omitted); see also In re Commitment of Weissinger, No. 09-12-00486-CV,

2013 WL 3355758, at *6 (Tex. App.—Beaumont June 27, 2013, pet. denied) (mem. op.)

(“[A]lthough defense counsel indicated that he desired to question the venire panel concerning

Texas case law regarding emotional or volitional capacity, counsel did not proffer specific

questions that he wished to ask. Therefore, we conclude that [appellant] failed to preserve the

issue for appellate review.”). Stated differently, “[i]f all that is shown is that the trial court

generally disapproved of an area of inquiry from which proper [voir dire] questions could have

been formulated, error is not preserved because the trial court might have allowed a proper

question had it been submitted for consideration.” Lee v. State, No. 12-09-00369-CR, 2010 WL

2638069, at *4 (Tex. App.—Tyler June 30, 2010, no pet.) (mem. op., not designated for

publication).

       This case is analogous to State v. McGuffey, 69 S.W.3d 654 (Tex. App.—Tyler 2002, no

pet.). In McGuffey the State asked the trial court to permit questions during voir dire about the

defendant’s two previous DWI convictions. The appellate record, however, did not contain any

question or questions that the State proposed to ask the prospective jurors about the previous

convictions. As a result, the Tyler Court of Appeals concluded that there was nothing for it to

review. Id. at 656; see also Greer v. Seales, No. 09-05-00001-CV, 2006 WL 439109, at *6 (Tex.

App.—Beaumont Feb. 23, 2006, no pet.) (mem. op.) (complaint that trial court limited

questioning during voir dire not preserved for appellate review because counsel “merely

identified general areas of inquiry he desired to pursue” and “failed to identify to the trial court

specific questions he was not permitted to ask”).




                                                –3–
       To the extent that appellant’s counsel told the trial court off the record which specific

question or questions he intended to ask concerning the general subject of “parole implications,”

thereby prompting the trial court’s initial ruling off the record prior to voir dire, we cannot

review the propriety of the trial court’s ruling because the question or questions are not in the

appellate record. See, e.g., Caldwell v. State, 818 S.W.2d 790, 794 (Tex. Crim. App. 1991)

(appellate court cannot review trial court’s refusal to allow voir dire questioning when appellate

record does not reflect what specific questions trial court precluded), overruled on other grounds

by Castillo v. State, 913 S.W.2d 529 (Tex. Crim. App. 1995).

       We note that appellant’s counsel’s renewed objection after voir dire was somewhat more

specific. That objection, however, was untimely and did not preserve the complaint for appellate

review because it was made after questioning was completed and the jury was chosen. See, e.g.,

Alvarado v. State, No. 01-05-00259-CR, 2006 WL 1232913, at *2 (Tex. App.—Houston [1st

Dist.] May 4, 2006, pet. ref’d) (mem. op., not designated for publication) (defendant’s complaint

that trial court failed to allow defense counsel to question juror about her hearing impairment not

preserved for appellate review because counsel knew about impairment at beginning of trial but

did not tell trial court what questions he wanted to ask her until the middle of trial); see generally

TEX. R. APP. P. 33.1(a) (error preservation requires timely objection); Dinkins v. State, 894

S.W.2d 330, 355 (Tex. Crim. App. 1995) (“To be timely, an objection must be raised at the

earliest opportunity or as soon as the ground of the objection becomes apparent.”).

       We resolve appellant’s first issue against him.

                                           SECOND ISSUE

       In his second issue appellant argues that the trial court’s judgment should be reformed to

delete the assessment of $244 in court costs against him because the clerk’s record does not




                                                 –4–
contain a bill of costs. He argues that without a written bill of costs, the evidence is insufficient

to support the assessment of court costs.

       In light of appellant’s complaint that the clerk’s record did not contain a bill of costs, we

ordered the Dallas County District Clerk to file a supplemental record containing the certified

bill of costs associated with this case, and the clerk did so. See TEX. R. APP. P. 34.5(c)(1) (rules

of appellate procedure allow supplementation of clerk’s record if relevant item has been

omitted); see also Franklin v. State, 402 S.W.3d 894, 895 (Tex. App.—Dallas 2013, no pet.);

Ballinger v. State, 405 S.W.3d 346, 348 (Tex. App.—Texarkana 2013, no pet.) (“[W]hen a trial

court’s assessment of costs is challenged on appeal and no bill of costs is in the record, it is

appropriate to supplement the record pursuant to Rule 34.5(c) because a bill of costs is required

by [Texas Code of Criminal Procedure] Article 103.006.”). Because the record now contains a

bill of costs supporting the assessment of costs in the trial court’s judgment, appellant’s

complaint that the evidence is insufficient is moot. See Franklin, 402 S.W.3d at 895.

       Appellant filed two objections to the supplemental clerk’s record. He complains that the

clerk did not file a “proper bill of costs” because (1) it is an unsworn, unsigned computer

printout, and (2) the record does not indicate that the bill of costs was filed or brought to the trial

court’s attention before costs were entered in the judgment. We have previously addressed and

rejected both of these arguments in Coronel v. State, No. 05-12-00493-CR, 2013 WL 3874446,

at *4–5 (Tex. App.—Dallas July 29, 2013, pet. filed).

       We resolve appellant’s second issue against him.

                                    THIRD AND FOURTH ISSUES

       In his third and fourth issues appellant argues that the judgment should be modified to

reflect the correct offense for which appellant was convicted and the correct names of the trial

prosecutors. The State agrees with appellant and also asks this Court to further modify the


                                                 –5–
judgment to (1) reflect that appellant pleaded “not true” to the first enhancement paragraph,

(2) reflect that the jury found the allegation to be “true,” (3) strike erroneous special findings,

and (4) correct the entry concerning sex offender registration and the age of the victim to

conform to article 42.01(27) of the Texas Code of Criminal Procedure.

          This Court has the power to modify an incorrect judgment to make the record speak the

truth 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). We have compared the judgment with the record in this

case and agree with the parties that the judgment should be modified as requested. First, with

respect to the offense for which appellant was convicted, the judgment states that appellant was

convicted of continuous sexual abuse of a child less than 14 years of age under “22.01 Penal

Code.” 1 The record, however, demonstrates that appellant was convicted of the lesser included

offense of aggravated sexual assault under section 22.021 of the Texas Penal Code.

          Second, with respect to the name of the prosecutors, the judgment states that the attorney

for the State was Shelley Fox. The record, however, demonstrates that the attorneys for the State

were Patrice Williams and Audra Riley.

          Third, with respect to the enhancement paragraph concerning appellant’s prior conviction

for sexual assault, the judgment states “N/A” next to the entries for “Plea to 1st Enhancement

Paragraph” and “Findings on 1st Enhancement Paragraph.” The record, however, demonstrates

that appellant pleaded “not true” to the enhancement paragraph and that jury found the

enhancement paragraph true.

          Fourth, with respect to the special finding concerning the ages of appellant and the

victim, the judgment states as follows:

   1
       Appellant was charged with continuous sexual abuse of a child less than 14 years of age under section 21.02 of the Texas Penal Code.



                                                                     –6–
       The Court FINDS that at the time of the offense, Defendant was younger
       than nineteen (19) years of age and the victim was at least thirteen (13) years
       of age. The Court FURTHER FINDS that the conviction is based solely on
       the ages of Defendant and the victim or intended victim at the time of the
       offense. TEX. CODE CRIM. PROC., art. 42.017

The record, however, demonstrates that the offense occurred in the months of November and

December 2010, during which time appellant turned 32 years old, and the victim was 13 years

old.

       Finally, with respect to the entry required under article 42.01(27) of the code of criminal

procedure, the judgment states, “Sex Offender Registration Requirements do not apply to the

Defendant. TEX. CODE CRIM. PROC. chapter 62. The age of the victim at the time of the offense

was N/A.” The record, however, demonstrates that appellant was convicted of aggravated sexual

assault, an offense for which registration as a sex offender is required. See TEX. CODE CRIM.

PROC. ANN. art. 42.01(27); id. art. 62.001(5)(A) (West Supp. 2012); art. 62.002(a) (West 2006).

The record also demonstrates that the victim was 13 years old at the time of the offense.

       Having compared the judgment to the record, we resolve appellant’s third and fourth

issues in his favor. We also grant the State’s request to make further modifications to the

judgment. We modify the judgment as follows:

           •   Change the notation under “Offense for which Defendant Convicted”
               from “SEX ABUSE CONTINUOUS CH/14” to “AGGRAVATED
               SEXUAL ASSAULT”;

           •   Change the notation under “Statute for Offense” from “22.01 Penal
               Code” to “22.021 Penal Code”;

           •   Change the entry next to “Attorney for State” from “Shelley Fox” to
               “Patrice Williams and Audra Riley”;

           •   Change the entry next to “Plea to 1st Enhancement Paragraph” from
               “N/A” to “Not True”;

           •   Change the entry next to “Findings on 1st Enhancement Paragraph” from
               “N/A” to “True”;


                                               –7–
           •   Delete the first paragraph under “Furthermore, the following special
               findings or orders apply,” which states, “The Court FINDS that at the
               time of the offense, Defendant was younger than nineteen (19) years
               of age and the victim was at least thirteen (13) years of age. The
               Court FURTHER FINDS that the conviction is based solely on the
               ages of Defendant and the victim or intended victim at the time of the
               offense. TEX. CODE CRIM. PROC., art. 42.017”; and

           •   Change the statement required under article 42.01(27) of the code of
               criminal procedure from “Sex Offender Registration Requirements do
               not apply to the Defendant. TEX. CODE CRIM. PROC. chapter 62. The
               age of the victim at the time of the offense was N/A” to “Sex Offender
               Registration Requirements apply to the Defendant. TEX. CODE CRIM.
               PROC. chapter 62. The age of the victim at the time of the offense was
               Thirteen (13) years.”

                                         CONCLUSION

       We modify the trial court’s judgment as described above and affirm as modified.




                                                   /Elizabeth Lang-Miers/
                                                   ELIZABETH LANG-MIERS
                                                   JUSTICE


Do Not Publish
TEX. R. APP. P. 47

120552F.U05




                                             –8–
                                        S
                               Court of Appeals
                        Fifth District of Texas at Dallas
                                      JUDGMENT

LARRY DARNELL PRICE, Appellant                      On Appeal from the 203rd Judicial District
                                                    Court, Dallas County, Texas
No. 05-12-00552-CR         V.                       Trial Court Cause No. F11-30771-P.
                                                    Opinion delivered by Justice Lang-Miers.
THE STATE OF TEXAS, Appellee                        Justices O'Neill and Evans participating.

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

       Change the notation under “Offense for which Defendant Convicted” from “SEX
       ABUSE CONTINUOUS CH/14” to “AGGRAVATED SEXUAL ASSAULT”;

       Change the notation under “Statute for Offense” from “22.01 Penal Code” to
       “22.021 Penal Code”;

       Change the entry next to “Attorney for State” from “Shelley Fox” to “Patrice
       Williams and Audra Riley”;

       Change the entry next to “Plea to 1st Enhancement Paragraph” from “N/A” to
       “Not True”;

       Change the entry next to “Findings on 1st Enhancement Paragraph” from “N/A” to
       “True”;

       Delete the first paragraph under “Furthermore, the following special findings
       or orders apply,” which states, “The Court FINDS that at the time of the
       offense, Defendant was younger than nineteen (19) years of age and the
       victim was at least thirteen (13) years of age. The Court FURTHER FINDS
       that the conviction is based solely on the ages of Defendant and the victim or
       intended victim at the time of the offense. TEX. CODE CRIM. PROC., art.
       42.017”; and




                                              –9–
       Change the statement required under article 42.01(27) of the code of criminal
       procedure from “Sex Offender Registration Requirements do not apply to the
       Defendant. TEX. CODE CRIM. PROC. chapter 62. The age of the victim at the
       time of the offense was N/A” to “Sex Offender Registration Requirements
       apply to the Defendant. TEX. CODE CRIM. PROC. chapter 62. The age of the
       victim at the time of the offense was Thirteen (13) years.”

As MODIFIED, the judgment is AFFIRMED.


Judgment entered this 3rd day of December, 2013.




                                                   /Elizabeth Lang-Miers/
                                                   ELIZABETH LANG-MIERS
                                                   JUSTICE




                                           –10–
