                               Fourth Court of Appeals
                                      San Antonio, Texas
                                    DISSENTING OPINION
                                         No. 04-14-00563-CR

                                         Richard H. VARELA,
                                               Appellant

                                                  v.
                                                The /s
                                         The STATE of Texas,
                                               Appellee

                      From the County Court at Law No. 7, Bexar County, Texas
                                      Trial Court No. 354648
                              Honorable Genie Wright, Judge Presiding

Opinion by: Karen Angelini, Justice
Dissenting Opinion by: Rebeca C. Martinez, Justice

Sitting:          Karen Angelini, Justice
                  Marialyn Barnard, Justice
                  Rebeca C. Martinez, Justice

Delivered and Filed: April 22, 2015

           The record in this case reflects that the trial court made no affirmative finding of family

violence, and the majority agrees that “no evidence was presented about the relationship between

the complainant and Varela, or whether they lived together.” See TEX. CODE CRIM. PROC. ANN.

art. 42.013 (West 2006). On appeal I believe Varela has sufficiently raised an argument that the

written judgment contains a clerical error by requesting remand for the trial court to “enter a

judgment that is congruent with the trial proceedings.” See TEX. R. APP. P. 38.9 (briefing rules are

to be liberally construed). The judgment, in my opinion, clearly reflects the trial court’s finding

of no family violence within the parenthetical “(No AFFV)” as referenced by the majority in
Dissenting Opinion                                                                     04-14-00563-CR


footnote 4 of its opinion. Further, the record shows the information charged Varela with assault

bodily injury and the jury charge asked the jury to determine whether Varela was guilty of assault

bodily injury, not “assault bodily injury-married.” In addition, as the majority notes, the trial court

“repeatedly reminded the State” that it had presented no evidence of a “family” relationship

between the victim and Varela, and stated on the record its intention to “put in parentheses no

affirmative finding of family violence.” While I agree with the majority that the trial court did not

err by refusing Varela’s request for “an affirmative finding of no family violence,” I believe the

trial court effectively made such a finding, which is supported by the record, and it is within our

purview to correct what is clearly a clerical error in the August 6, 2014 corrected judgment’s

statements that Varela was convicted of “assault bodily injury-married.” See Villarreal v. State,

No. 04-11-00771-CR, 2015 WL 1393422, at *1 n.2 (Tex. App.—San Antonio March 25, 2015, no

pet. h.) (mem. op., not designated for publication) (modifying the judgment to correct a clerical

error in the statement of the offense of conviction); Agyin v. State, Nos. 04-12-00749 through 751-

CR, 2013 WL 5864483, at *7 (Tex. App.—San Antonio Oct. 30, 2013, pet. ref’d) (mem. op., not

designated for publication) (modifying the judgment to correct a clerical error and state defendant

was convicted of first degree, not second degree, felonies). Therefore, I would modify the

judgment to correctly reflect the offense of which Varela was convicted, and would affirm the

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


                                                   Rebeca C. Martinez, Justice

DO NOT PUBLISH




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