                                                                                  ACCEPTED
                                                                              03-15-00095-CR
                                                                                      7392299
                                                                   THIRD COURT OF APPEALS
                                                                              AUSTIN, TEXAS
                                                                        10/15/2015 1:38:26 PM
                                                                            JEFFREY D. KYLE
                                                                                       CLERK


                      No. 03-15-00095-CR
                                                             FILED IN
                                                      3rd COURT OF APPEALS
                               In the                      AUSTIN, TEXAS
                          Court of Appeals            10/15/2015 1:38:26 PM
                           Third District                 JEFFREY D. KYLE
                           Austin, Texas                       Clerk


                            Juan Leal,
                             Appellant

                                  v.

                       The State of Texas,
                            Appellee

        Appeal from the 299th District Court of Travis County
              Honorable Karen Sage, Judge Presiding
                 Cause Number D-1-DC-13-300082

                         STATE’S BRIEF


                                 Rosemary Lehmberg
                                 District Attorney
                                 Travis County

                                 Angie Creasy
                                 Assistant District Attorney
                                 State Bar No. 24043613
                                 P.O. Box 1748
                                 Austin, Texas 78767
                                 (512) 854-9400
                                 Fax (512) 854-4810
                                 Angie.Creasy@traviscountytx.gov
                                 AppellateTCDA@traviscountytx.gov

Oral argument is not requested
                                     Table of Contents

Index of Authorities............................................................................. ii
Statement of Facts ................................................................................1
Summary of the State’s Argument....................................................... 2
Argument ............................................................................................. 2
 Reply Point: The written judgment should not be modified. ........... 2
Prayer .................................................................................................. 3
Certificate of Compliance and Service ................................................. 4




                                                       i
                              Index of Authorities

    Cases
Ablon v. State, 537 S.W.2d 267 (Tex. Crim. App. 1976) ...................... 3
Dunlap v. State, No. 03-95-00743-CR, 1997 Tex. App. LEXIS 1737,
 1997 WL 152628 (Tex. App.—Austin 1997, pef. ref’d) ...................... 3

    Statutes
Tex. Code Crim. Proc. art. 42.03 ......................................................... 3




                                               ii
                       No. 03-15-00095-CR

                                In the
                           Court of Appeals
                            Third District
                            Austin, Texas

                             Juan Leal,
                              Appellant

                                  v.

                        The State of Texas,
                             Appellee

        Appeal from the 299th District Court of Travis County
              Honorable Karen Sage, Judge Presiding
                 Cause Number D-1-DC-13-300082

                          STATE’S BRIEF


To the Honorable Third Court of Appeals:

   Now comes the State of Texas and files this brief in response to

Appellant’s brief.


                        Statement of Facts

   Appellant was placed on deferred adjudication for assault. The

State filed a 3-page motion to adjudicate, alleging numerous

violations. CR 50-52. After a hearing, the judge stated on the record




                                       1
that she found the allegations in the motion to be true. The judge then

proceeded to read through the allegations one-by-one. 2RR 150-52.

   As she was reading through the lengthy list, the judge missed a

few allegations. Appellant asks this court to modify the written

judgment to delete the allegations that were not read aloud by the

judge. CR 70-72.


               Summary of the State’s Argument

   There is no real conflict between the oral pronouncement and the

written judgment. Even if there were, the trial court’s written order

revoking probation controls over the oral pronouncement. Therefore,

the written judgment should not be modified.


                              Argument

Reply Point: The written judgment should not be modified.

   As an initial matter, the judgment is not actually in conflict with

the oral pronouncement because the judge did not find that any of the

allegations were Not True. To the contrary, she stated that the

allegations were True. She just missed a few when she read them

aloud.




                                     2
   Even if there was a discrepancy, the trial court’s written order

revoking probation controls over the oral pronouncement. See

Dunlap v. State, No. 03-95-00743-CR, 1997 Tex. App. LEXIS 1737,

*5-7, 1997 WL 152628 (Tex. App.—Austin 1997, pef. ref’d) (not

designated for publication), citing Ablon v. State, 537 S.W.2d 267,

268-69 (Tex. Crim. App. 1976). Therefore, the written judgment

should not be modified.

   Appellant argues that the oral pronouncement should control, but

the cases he cites involve discrepancies as to the sentence assessed. In

that situation, the oral pronouncement controls because the sentence

must be pronounced in the defendant’s presence. See Tex. Code Crim.

Proc. art. 42.03, §1(a). But there is no discrepancy as to the sentence

assessed in this case. Rather, the discrepancy, if any, involves the

grounds for revocation. In that situation, the written judgment

controls.


                                Prayer

   The State asks this Court to overrule Appellant’s point of error and

affirm the trial court’s judgment.




                                     3
                              Respectfully submitted,

                              Rosemary Lehmberg
                              District Attorney
                              Travis County




                              Angie Creasy
                              Assistant District Attorney
                              State Bar No. 24043613
                              P.O. Box 1748
                              Austin, Texas 78767
                              (512) 854-9400
                              Fax (512) 854-4810
                              Angie.Creasy@traviscountytx.gov
                              AppellateTCDA@traviscountytx.gov


             Certificate of Compliance and Service
   I certify that this brief contains 383 words. I further certify that,

on the 15th day of October, 2015, a true and correct copy of this brief

was served, by U.S. mail, electronic mail, facsimile, or electronically

through the electronic filing manager, to the defendant’s attorney,

Paul Evans, 811 Nueces Street, Austin, Texas 78701.




                              Angie Creasy


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