A ffirmed as Reformed and Memorandum Opinion filed March 26, 2009.
Fourteenth Court of Appeals
____________ NO. 14-08-00604-CR ____________ DOMINIQUE DENARD GOOCH, Appellant V. THE STATE OF TEXAS, Appellee
On Appeal from the 114th District Court Smith County, Texas Trial Court Cause No. 114-1079-07
Appellant entered a guilty plea to possession of a controlled substance. After a punishment hearing to a jury on April 1, 2008, appellant was sentenced to confinement for life in the Institutional Division of the Texas Department of Criminal Justice and assessed a $10,000 fine. In his sole issue on appeal, appellant asserts that the trial court erred by including a finding in the judgment on an abandoned enhancement paragraph. We affirm the judgment as reformed.
The indictment in this case included the following enhancement paragraph: And it is further presented in and to said Court that, prior to the commission of the aforesaid offense, on the 26th day of July, 1999, in cause number F9843321-PU in the 291st Judicial District Court of Dallas County, Texas, the defendant was convicted of the felony offense of Aggravated Assault.
This language is crossed-out and marked “abandoned.” In addition, the Stated informed the court when presenting the indictment to the jury, “Judge, that’s abandoned . . . there is no enhancement . . . .” Therefore, the enhancement was properly removed from the indictment. See Ex parte Preston , 833 S.W.2d 515, 517 (Tex. Crim. App. 1992). Appellant was not asked to plead to the enhancement allegation and it was not submitted to the jury. In its oral pronouncement of sentence, the trial court did not mention the enhancement. Nonetheless, the trial court’s written judgment stated: IT IS THE ORDER OF THE COURT, that said Defendant, who has been adjudged to be guilty of POSSESSION OF A CONTROLLED SUBSTANCE, AND IT IS FURTHER PRESENTED IN AND TO SAID COURT THAT , PRIOR TO THE COMMISSION OF THE AFORESAID OFFENSE, ON THE 28TH DAY OF JULY, 1999, IN CAUSE NUMBER F-9843321-PU IN THE 291ST JUDICIAL DISTRICT COURT OF DALLAS COUNTY, TEXAS, THE DEFENDANT WAS CONVICTED OF THE FELONY OFFENSE OF AGGRAVATED ASSAULT . . . .
W hen there is a variance between the oral pronouncement of sentence and the written memorialization of the sentence in the judgment, the oral pronouncement controls. T aylor v. State , 131 S.W.3d 497, 500 (Tex. Crim. App. 2004); B argas v. State , 252 S.W.3d 876, 903 (Tex. App.—Houston [14th Dist.] 2008, no pet.). An appellate court may correct a trial court’s judgment to conform to its oral pronouncement. T hompson v. State , 108 S.W.3d 287, 290 (Tex. Crim. App. 2003); s ee, e.g., C obb v. State , 95 S.W.3d 664, 668 (Tex. App.—Houston [1st Dist.] 2002, no pet.) (reforming judgment to reflect that a firearm was used as a deadly weapon). 2
Appellant requests that we reform the trial court’s judgment to reflect that there was no enhancement. The State filed a response to appellant’s brief, conceding that the written judgment fails to correctly reflect that the enhancement paragraph in the indictment was abandoned. Therefore, the State joined appellant in requesting that we reform the judgment. According, appellant’s sole issue is sustained. We reform the judgment to reflect that there is no enhancement, and, as reformed, we affirm the judgment.
Panel consists of Chief Justice Hedges and Justices Anderson and Seymore. D o not publish — T EX. R . A PP. P . 47.2(b).