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

              No. 06-11-00174-CR
        ______________________________


              GLENN ROSS, Appellant

                          V.

         THE STATE OF TEXAS, Appellee




   On Appeal from the 124th Judicial District Court
                Gregg County, Texas
             Trial Court No. 38,315-B




     Before Morriss, C.J., Carter and Moseley, JJ.
       Memorandum Opinion by Justice Carter
                                  MEMORANDUM OPINION

       Glenn Ross appeals from the final adjudication of his guilt. In the underlying prosecution,

Ross pled guilty and was placed on deferred adjudication on July 9, 2010, for the offense of

indecency with a child by contact. His guilt was deferred and he was placed on community

supervision for seven years. On June 9, 2011, the State filed a motion to adjudicate guilt and

revoke his community supervision based on allegations that Ross had violated a condition

requiring him to abstain from the use of alcohol and that he had violated a criminal statute by

driving while under the influence. Ross stipulated to the evidence and pled true. The trial court

adjudicated him guilty and sentenced him to twelve years’ imprisonment.

       The record shows that Ross pled guilty to indecency with a child under count three of the

indictment and that the State agreed to abandon the remaining counts. Count three of the

indictment alleges that he engaged in sexual contact with Jane Doe, a child younger than seventeen

years, by touching her breast. The only evidence admitted at the plea proceeding was Ross’

stipulation, in which he admitted touching the breast of Jane Doe, a child younger than seventeen

years. The judgment placing Ross on community supervision correctly specified that he pled

guilty to indecency with a child, second degree felony, in violation of TEX. PENAL CODE ANN.

§ 21.11(a)(1) (West 2011). The trial court was required by Article 62 of the Texas Code of




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Criminal Procedure to note the age of the victim, and it was found as “younger than 14 years of

age.”1

         After the adjudication hearing, the trial court found Ross guilty and assessed punishment at

twelve years’ imprisonment. Once again, the judgment adjudicating guilt correctly stated that the

offense was “Indecency with a Child.” But the judgment incorrectly noted that the statute

violated was TEX. PENAL CODE ANN. § 22.021(a)(2)(B), which is the offense of aggravated sexual

assault. Further, the judgment noted the age of the victim at “younger than 14 years of age.”

Ross appeals, arguing the adjudication of guilt was faulty based on the finding of the victim’s age

and an incorrect statute reference, which could not be corrected by nunc pro tunc order. We

affirm the judgment of the trial court.

         At the adjudication hearing, the trial court clearly stated that Ross had pled guilty to the

offense of touching a child under seventeen, not a child under fourteen, and not aggravated sexual

assault. At the beginning of the proceeding, the court specified that the range of punishment was

between two and twenty years for the crime.                 There is no suggestion that the range was

inappropriate for the actual offense, and it is the correct range for a second degree felony. TEX.

PENAL CODE ANN. §§ 12.33, 21.11(a)(1), (d) (West 2011). The judge correctly pronounced

sentence, but the written documentation of the ruling was inaccurate.




1
This information is included in the judgment pursuant to the requirement for registration of sexual offenders. TEX.
CODE CRIM. PROC. ANN. art. 62.051(c)(3) (West Supp. 2011).

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       In an attempt to rectify the confusion, the trial court entered a nunc pro tunc judgment

adjudicating guilt that changed the statute reference to the correct one. But, the corrected

judgment still contains language stating that the victim was younger than fourteen years of age.

The remaining question is whether the portion of the judgment referring to her age is error.

       We first point out that the portion of the document referring to her age is not a part of the

command language of conviction. The command language of the conviction in the judgment

nunc pro tunc refers to Ross’ conviction for indecency with a child under seventeen, and now also

references the correct statute to support the conviction. The complained-of language is later in

the document, and reads:

       Sex Offender Registration Requirements apply to the Defendant. TEX. CODE
       CRIM. PROC. chapter 2
       The age of the victim at the time of the offense was YOUNGER THAN 14
       YEARS OF AGE.

       Nunc pro tunc literally means “now for then,” and describes the inherent power possessed

by a court to make its records speak the truth by correcting the record at a later date to reflect what

actually occurred at trial. Collins v. State, 240 S.W.3d 925, 928 (Tex. Crim. App. 2007). The

purpose of a nunc pro tunc order is to correctly reflect from the records of the court a judgment

actually made by it, but which for some reason was not entered of record at the proper time.

Ex parte Dopps, 723 S.W.2d 669, 670 (Tex. Crim. App. 1986) (per curiam). Where there is a

variation between the oral pronouncement of sentence and the written memorialization of the




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sentence, the oral pronouncement of sentence controls. Thompson v. State, 108 S.W.3d 287, 290

(Tex. Crim. App. 2003).

       In this case, the trial court deferred adjudication of guilt for the offense of indecency with a

child under seventeen. Later, the trial court revoked Ross’ community supervision, adjudicated

guilt, and sentenced him for the underlying offense: indecency with a child under seventeen.

The judgment adjudicating guilt cited the wrong statute number, and a correction was made to

conform to the actual judgment rendered. The mistake was not judicial in nature—but a failure of

the written judgment to correctly reflect the judgment rendered by the trial court. The error

regarding the statute number of the offense was clerical, and correction is the proper use of a nunc

pro tunc judgment.

       The trial court declined to make any change in the finding of the victim’s age. Ross

argues there is no evidence to support the entry that the child was younger than fourteen years of

age. Proof that the victim was under fourteen years of age is not an element of the offense, and

even if the evidence was insufficient to uphold this ancillary finding, it would not be reversible

error, but the judgment could be reformed.

       The only direct evidence that the victim was under fourteen years of age is the following

testimony of Ross, which occurred during the adjudication/revocation proceeding.

              A.     [By Ross] . . . . And they come over to the motel and asked me if I
       could help them. And I helped -- Jessie got a job over at the motel, a maid job.
       And that’s how they come about coming to the motel over there to stay.



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               Q.      And she was 11 at the time?

               A.      At that time, yeah, maybe.

               Q.      And [N.K.] believed you to be her biological father?

               A.      Yes.

       A more definitive answer is certainly preferable, but when asked if she was eleven years

old, Ross answered, “Yeah” then added, “[M]aybe.” As it appears on the printed page, such an

answer appears equivocal, but the trial court, after seeing the witness’ demeanor and hearing the

words spoken, had some evidence to determine the child was eleven years of age (younger than

fourteen) and entered such a finding. It is certainly true that the inflection, tone, and body

language of the speaker conveys messages beyond that which can be captured in writing. The

trial court chose not to change the finding that the victim was younger than fourteen even when the

issue was brought to its attention by a motion for new trial. We cannot find that the trial court

abused its discretion in making its determination of the age of the victim.

       We affirm the judgment of the trial court.




                                              Jack Carter
                                              Justice

Date Submitted:        April 16, 2012
Date Decided:          April 26, 2012



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