AFFIRMED AS MODIFIED and Opinion Filed September 25, 2018




                                          S   In The
                                Court of Appeals
                         Fifth District of Texas at Dallas
                                       No. 05-18-00449-CR

                      LORENA MONSERRATH GANDARA, Appellant
                                       V.
                           THE STATE OF TEXAS, Appellee

                       On Appeal from the 15th Judicial District Court
                                  Grayson County, Texas
                              Trial Court Cause No. 068742

                              MEMORANDUM OPINION
                   Before Chief Justice Wright and Justices Myers and Stoddart
                                 Opinion by Chief Justice Wright
       Lorena Monserrath Gandara appeals her convictions for driving while intoxicated with a

child passenger and aggravated assault with a deadly weapon. On August 28, 2018, the trial court

filed findings and recommendations in which it found that appellant does not intend to proceed

with her appeal.

       By order entered September 5, 2018, the Court adopted the trial court’s finding that

appellant did not intend to proceed with the appeal. The Court’s order also informed appellant

that if a motion to dismiss was not filed within ten days, the Court would order the appeal submitted

without a reporter’s record or briefs. No motion to dismiss has been filed.
       We submit the case without the reporter’s record and briefs. See TEX. R. APP. P. 37.3(c),

38.8(b)(4). Absent briefs, no issues are before us. We have reviewed the clerk’s record for

fundamental error and have found none.

       We note that the judgment in this case reflects the statute for offense for the aggravated

assault count, labeled as “CT3,” as “CT3-22.02(2)(B).” The correct penal code provision for the

offense of aggravated assault with a deadly weapon is section 22.02(a)(2). See TEX. PENAL CODE

ANN. § 22.02(a)(2) (West 2011). The Court has the power to modify incorrect judgments when

the necessary data and information is available to do so. See TEX. R. APP. P. 43.2(b); Abron v.

State, 997 S.W.2d 281, 282 (Tex. App.—Dallas 1998, pet. ref’d). We modify the judgment to

reflect the statute for offense as “CT3-22.02(a)(2).”

       We affirm the trial court’s judgment as modified.




                                                   /Carolyn Wright/
                                                   CAROLYN WRIGHT
                                                   CHIEF JUSTICE

Do Not Publish
TEX. R. APP. P. 47.2(b)
180449F.U05




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                                        S
                               Court of Appeals
                        Fifth District of Texas at Dallas
                                       JUDGMENT

 LORENA MONSERRATH GANDARA,                         On Appeal from the 15th Judicial District
 Appellant                                          Court, Grayson County, Texas
                                                    Trial Court Cause No. 068742.
 No. 05-18-00449-CR         V.                      Opinion delivered by Chief Justice Wright.
                                                    Justices Myers and Stoddart participating.
 THE STATE OF TEXAS, Appellee

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

       We modify the judgment to replace "CT3-22.02(B)" with "CT3-22.02(a)(2)" in
       the section styled "Statute for Offense."

As MODIFIED, the judgment is AFFIRMED.


Judgment entered September 25, 2018.




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