                                    In The

                              Court of Appeals
                   Ninth District of Texas at Beaumont
                         ____________________
                            NO. 09-13-00328-CR
                            NO. 09-13-00329-CR
                         ____________________

                 CARLOS HERNANDEZ CAMACHO
          A/K/A EDGARDO ALVARADO-CAMACHO, Appellant

                                      V.

                     THE STATE OF TEXAS, Appellee

_______________________________________________________        ______________

                  On Appeal from the 258th District Court
                        San Jacinto County, Texas
                      Trial Cause Nos. 11031, 11032
________________________________________________________        _____________

                        MEMORANDUM OPINION

      In these appeals, Carlos Hernandez Camacho 1 complains the trial court,

during his punishment hearing, erred by considering a presentence investigation

report that included “entries alleging an arrest [in 1996] for driving while

intoxicated, and an arrest [in 2000] for criminal trespass[.]” According to

      1
     The record reflects that Camacho is also known as Edgardo Alvarado-
Camacho.
                                      1
Camacho, the report did not show that he had been convicted of the 1996 and 2000

offenses. Based on the State’s lack of proof that he had committed these two

offenses beyond a reasonable doubt, Camacho argues the trial court erred by

considering the information regarding these arrests at his sentencing hearing. At

the conclusion of the sentencing hearing, the trial court sentenced Camacho to a

twenty-year sentence on both the aggravated assault case, trial cause number

11031, and on the manslaughter case, trial cause number 11032. Because the trial

court did not abuse its discretion by considering the arrests at issue, we affirm the

trial court’s judgments.


                                    Background

      Camacho pled guilty to an information charging him with aggravated assault

causing serious bodily injury and an information charging him with manslaughter.

See Tex. Penal Code Ann. §§ 19.04, 22.02 (West 2011). Camacho’s plea in each

case subjected him to a potential sentence on each case of not more than twenty

years in prison. See id. § 12.33(a) (West 2011). After the trial court found

Camacho guilty, it scheduled a sentencing hearing and requested that the State

conduct a presentence investigation. See Tex. Code Crim. Proc. Ann. arts. 37.07 §

3(d), 42.12 § 9(a) (West Supp. 2014).



                                         2
      During the sentencing hearing, Camacho objected to the trial court

considering the information in the report regarding his 1996 and 2000 arrests. The

court overruled Camacho’s objections and considered the report, which indicates

that no records were located showing how Camacho’s 1996 and 2000 arrests were

resolved. According to Camacho, these two arrests should not have been

considered by the trial court during the sentencing hearing because the evidence

was not sufficient to allow the trial court to conclude, beyond a reasonable doubt,

that Camacho had actually committed these offenses.

      Trial courts are authorized to obtain a presentence investigation before

sentencing a defendant in a felony case. See id. art. 37.07 § 3(d). The trial court is

statutorily authorized to then consider the presentence report during the sentencing

hearing. Id. “By statute, the Legislature has directed what is to be included in a

PSI, and the statute does not limit the criminal history to final convictions.”

Stringer v. State, 309 S.W.3d 42, 48 (Tex. Crim. App. 2010). The trial court shall

allow the defendant to review and comment on the report, and, with leave of the

court, proffer evidence as to any factual inaccuracies in the report. See Tex. Code

Crim. Proc. Ann. art. 42.12 § 9(d), (e) (West Supp. 2014); Stringer, 309 S.W.3d at

48 (“The PSI statute also provides the defendant the opportunity to present

contrary evidence.”).

                                          3
      In Smith v. State, the Court of Criminal Appeals held that a trial court may

consider evidence of extraneous misconduct in assessing punishment when that

information is included in a presentence investigation, even where the defendant

was not shown beyond reasonable doubt to have actually committed the

misconduct. 227 S.W.3d 753, 763 (Tex. Crim. App. 2007). Based on the holding in

Smith, we hold that the trial court did not abuse its discretion by considering the

information concerning Camacho’s arrests. See id. We overrule the sole issue

raised by Camacho in his appeals.

      Nevertheless, the judgment in cause number 11031, Camacho’s aggravated

assault case, contains a clerical error. The judgment the trial court rendered in this

case refers to section 19.04 of the Penal Code, a statute that makes it a crime to

commit manslaughter. See Tex. Penal Code Ann. § 19.04. But, in cause number

11031, Camacho pled guilty and was convicted of aggravated assault, a conviction

based on section 22.02 of the Penal Code. See id. § 22.02.

      An appeals court may modify a judgment to correct clerical errors. Bigley v.

State, 865 S.W.2d 26, 27-28 (Tex. Crim. App. 1993). We correct the clerical error

in the judgment in cause number 11031 by replacing the reference in the judgment

to section 19.04 of the Penal Code with a reference to section 22.02 of the Penal




                                          4
Code. Therefore, the trial court’s judgment in cause number 11031 is affirmed as

modified. The trial court’s judgment in cause number 11032 is affirmed.

      AFFIRMED AS MODIFIED; AFFIRMED.




                                                  _________________________
                                                        HOLLIS HORTON
                                                            Justice

Submitted on May 21, 2014
Opinion Delivered September 10, 2014
Do Not Publish

Before McKeithen, C.J., Kreger, and Horton, JJ.




                                        5
