                                     In The
                                Court of Appeals
                       Seventh District of Texas at Amarillo

                                     No. 07-13-00163-CR


                           ROBERT RODRIGUEZ, APPELLANT

                                              V.

                            THE STATE OF TEXAS, APPELLEE

                            On Appeal from the 137th District Court
                                    Lubbock County, Texas
          Trial Court No. 2012-433,512, Honorable John J. "Trey" McClendon, Presiding

                                    November 14, 2013

                              MEMORANDUM OPINION
                    Before QUINN, C.J., and CAMPBELL and PIRTLE, JJ.


      Appellant Robert Rodriguez appeals from the trial court’s judgment of conviction

of the offense of burglary of a habitation.1 Through one issue, Rodriquez asks this

Court to reform the judgment. The State agrees it should be reformed. We will reform

the judgment, and affirm it as reformed.




      1
          TEX. PENAL CODE ANN. 30.02(c)(2) (West 2012).
                                       Background

       Rodriguez was indicted in January 2012 for burglary of a habitation. The

indictment also contained an enhancement paragraph stating Rodriguez had been

convicted of attempted burglary of a habitation in August 2008. The State later filed a

notice concerning another prior conviction, alleging a juvenile adjudication.


       In April 2013, the trial court held a hearing on Rodriguez’s open guilty plea. The

court accepted Rodriguez’s plea, finding him guilty as alleged in the indictment, found

the first enhancement paragraph “true” and sentenced Rodriguez to thirty-five years of

imprisonment in the Texas Department of Criminal Justice, Institutional Division. The

written judgment signed in June 2013 differed from the oral pronouncement in that it

stated Rodriguez plead “true” to a second “enhancement/habitual” paragraph and that

the court found the second “enhancement/habitual” paragraph was true.


                                           Analysis


       Rodriguez argues we should reform the trial court’s written judgment to reflect

that he did not plead “true” to the second habitual offender felony enhancement

paragraph, and that the trial court did not find the habitual offender felony enhancement

allegation to be true. The State agrees.


       A trial court’s pronouncement of sentence is oral, while the judgment, including

the sentence assessed, is merely the written declaration and embodiment of that oral

pronouncement. TEX. CODE CRIM. PROC. ANN. art. 42.01 § 1 (West 2012); Ex parte

Madding, 70 S.W.3d 131, 135 (Tex. Crim. App. 2002). When the oral pronouncement of

sentence and the written judgment vary, the oral pronouncement controls. Thompson v.


                                              2
State, 108 S.W.3d 287, 290 (Tex. Crim. App. 2003); Ex parte Madding, 70 S.W.3d at

135; Coffey v. State, 979 S.W.2d 326, 328 (Tex. Crim. App. 1998). An appellate court

has the power to “correct and reform the judgment of the court below to make the

record speak the truth when it has the necessary data and information to do so, or make

any appropriate order as the law and the nature of the case may require.” Asberry v.

State, 813 S.W.2d 526, 529 (Tex. App.—Dallas 1991, pet. ref’d); see also Nolan v.

State, 39 S.W.3d 697, 698 (Tex. App.—Houston [1st Dist.] 2001, no pet.). The Texas

Rules of Appellate Procedure allow us to “modify the trial court’s judgment and affirm it

as modified.” TEX. R. APP. P. 43.2(b).


        Both parties agree the written judgment incorrectly reflects Rodriguez plead

“true” to the second habitual offender felony enhancement paragraph, and the trial court

found the second habitual offender felony enhancement paragraph to be “true.”

Rodriguez was admonished orally and in writing that the applicable range of punishment

was imprisonment for a period of five to ninety-nine years due to the prior 2008 felony

conviction but he was not admonished regarding the habitual offender range of

punishment. And, the State expressly stated during the plea hearing that the juvenile

offense alleged in the second enhancement paragraph could not be used to enhance

the range of punishment to a habitual offender range of punishment under the Penal

Code.     See TEX. PENAL CODE ANN. § 12.42(f).          Further, as noted, the court’s

pronouncement of sentence made no finding regarding the juvenile adjudication

described in the second enhancement paragraph.


        We sustain appellant’s issue, and reform the judgment to remove the erroneous

statements on both the first and second pages of the written judgment regarding the

                                           3
second habitual offender felony enhancement paragraph. See Sterling v. State, No. 05-

99-00417-CR, 1999 Tex.App. LEXIS 7734 (Tex. App.—Dallas Oct. 18, 1999, no pet.)

(mem. op, not designated for publication) (reforming judgment on similar facts). On the

first page, we reform the judgment to remove “true” from the “Plea to 2 nd

Enhancement/Habitual     Paragraph”     and       “true”   from   the   “Findings   on   2 nd

Enhancement/Habitual Paragraph.” On the second page of the judgment, we reform

the judgment to remove the following language:             “The Court further finds that the

defendant is one and the same defendant named in enhancement paragraph number

two (2) and the Court finds as true that he had been previously and duly convicted of a

felony offense of Aggravated Assault, in Cause No. 98-763949 in the 137th District Court

of Lubbock County, Texas that had become final prior to the commission of each of the

aforementioned felony offenses.”


      As reformed, the judgment of the trial court is affirmed.




                                                   James T. Campbell
                                                       Justice



Do not publish.




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