DARRYL KEVIN TAYLOR, Appellant v. THE STATE OF TEXAS, Appellee

Affirmed as Modified, and Opinion Filed December 20, 1996
 
 
S
In The
Court of Appeals
Fifth District of Texas at Dallas
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No. 05-91-01343-CR
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DARRYL KEVIN TAYLOR, Appellant
V.
THE STATE OF TEXAS, Appellee
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On Appeal from the Criminal District Court No. 2
Dallas County, Texas
Trial Court Cause No. F89-96540-RI
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O P I N I O N
Before Justices Lagarde, Kinkeade, and Maloney
Opinion By Justice Kinkeade
        On the State's motion to proceed with adjudication of guilt, the trial court found appellant Darryl Kevin Taylor guilty of unlawful possession of a controlled substance and signed a judgment assessing punishment at confinement in the state penitentiary for twenty-five years and a $1,500 fine. In one point of error, appellant contends that the trial court had no statutory authority to assess a fine. Appellant therefore asks this Court to set aside the trial court's judgment and remand the cause for a new trial on punishment. Because the record affirmatively reflects that the trial judge did not assess a fine when pronouncing appellant's punishment, we conclude that the judgment, to the extent it shows a $1,500 fine, contains clerical error. We reform the judgment to delete the clerical error. As modified, we affirm the trial court's judgment.
Background
        Appellant was charged with possession of less than twenty-eight grams of cocaine, a second degree felony. The indictment also contained two enhancement paragraphs alleging two earlier felony convictions. After appellant pleaded guilty to the offense and true to the two enhancement paragraphs, the trial court deferred adjudicating appellant's guilt and placed him on probation. Thereafter the State filed a motion to proceed with an adjudication of guilt because appellant violated the terms of his probation. The trial court granted the State's motion, adjudicated appellant guilty, and pronounced appellant's sentence at confinement in the Institutional Division of the Texas Department of Criminal Justice for twenty-five years. The trial court's August 22, 1991 judgment, however, reflects a punishment of confinement for twenty-five years and a fine of $1,500.
Discussion
        In one point of error, appellant maintains that the trial court sentenced him as a habitual felon under section 12.42(d) of the Texas Penal Code. Act of May 23, 1983, 68th Leg., R.S., ch. 339, § 1, 1983 Tex. Gen. Laws 1750, 1750, amended by Act of May 29, 1993, 73rd Leg., R.S., ch. 900, § 1.01, 1993 Tex. Gen. Laws 3586, 3586, amended by Act of May 25, 1995, 74th Leg., R.S., ch. 250, § 1, 1995 Tex. Gen. Laws 2176, 2176, amended by Act of May 29, 1995, 74th Leg., R.S., ch. 318, § 1, 1995 Tex. Gen. Laws 2734, 2734 (current version at Tex. Penal Code Ann. § 12.42(d) (Vernon Supp. 1997)). Section 12.42 authorized a term of confinement for life or for not more than ninety-nine years or less than twenty-five years, but it did not authorize a fine. Appellant concludes that this Court is required to set aside his punishment and remand his cause to the trial court for a new hearing on punishment. See Goodwin v. State, 694 S.W.2d 19, 29 (Tex. App.--Corpus Christi 1985, pet. ref'd).
        The State notes that appellant does not contest the trial court's authority to assess the twenty-five year sentence. Regarding the fine, the State concedes that section 12.42(d) did not authorize a fine. The State, however, contends that when the trial judge orally pronounced sentence, he did not assess a fine. The State concludes that the $1,500 fine constitutes a clerical error. Because the error is clerical, the State maintains that this court can correct it without having to set the trial court's punishment aside and without having to remand the cause. See Asberry v. State, 813 S.W.2d 526, 531 (Tex. App.--Dallas 1991, pet. ref'd) (en banc); Williams v. State, 796 S.W.2d 793, 800 (Tex. App.--San Antonio 1990, no pet.). The State asks this Court simply to reform the judgment to reflect the truth.
        In Asberry, in a unanimous en banc opinion, this Court wrote that appellate courts have the power to correct and reform trial court judgments to make the record speak the truth when the appellate courts have the necessary information to do so. Asberry, 813 S.W.2d at 529. Appellate courts have the power to reform whatever the trial court could have corrected by a judgment nunc pro tunc, provided the appellate court has the necessary information in the record. Id. An appellate court's authority does not depend upon the request of any party or upon the preservation of error; an appellate court may even act sua sponte. Id. at 529-30. This Court wrote that it was universally known that clerks or other court personnel prepare the judgments in criminal cases. Id. at 531.
        At the hearing on the State's motion to proceed to adjudication, the trial judge pronounced sentence at confinement for twenty-five years in the state penitentiary. The trial judge did not assess a fine. Pursuant to Asberry, we reform the judgment to delete the $1,500 fine. Because we can correct the error without having to set the trial court's judgment aside and without remanding the cause, we overrule appellant's point of error.
        As modified, we affirm the trial court's judgment.
 
 
                                                          
                                                          ED KINKEADE
                                                          JUSTICE
 
Do Not Publish
Tex. R. App. P. 90
 
 
 
File Date[12-20-96]
File Name[911343F]