JAMES GRAY LIPSEY, Appellant v. THE STATE OF TEXAS, Appellee

AFFIRMED as MODIFIED; Opinion Filed July 10, 2007.
 
 
 
In The
Court of Appeals
Fifth District of Texas at Dallas
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No. 05-07-00005-CR
No. 05-07-00006-CR
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JAMES GRAY LIPSEY, Appellant
V.
THE STATE OF TEXAS, Appellee
.............................................................
On Appeal from the 363rd Judicial District Court
Dallas County, Texas
Trial Court Cause Nos. F05-20053-LW; F05-20054-LW
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OPINION
Before Justices Wright, Richter, and Lang
Opinion By Justice Lang
        Appellant brings this appeal from the trial court's judgments convicting him of aggravated sexual assault of a child younger than fourteen years of age and indecency with a child. In four issues, appellant argues that (1) the trial court's judgment in cause no. F05-20053-LW should be modified to reflect that appellant was convicted of aggravated sexual assault of a child younger than fourteen years of age rather than indecency with a child, (2) the trial court's judgment in cause no. F05-20054-LW should be modified to remove the imposition of a fine because no such fine was imposed during oral pronouncement of the sentence, and (3 & 4) the trial court's judgments in cause nos. F05-20053-LW and F05-20054-LW should be modified to reflect that appellant did not enter into a plea bargain. For the following reasons, we decide in appellant's favor on all issues, modify the judgments, and affirm the judgments as modified.
I. FACTUAL AND PROCEDURAL BACKGROUND
 
        On August 8, 2005, James Lipsey, appellant, was charged with aggravated sexual assault of a child younger than fourteen years of age (cause no. F05-20053-LW) and indecency with a child (cause no. F05-20054-LW). He waived his right to a jury and entered non-negotiated pleas of guilty to each charged offense. The trial court accepted appellant's guilty pleas and convicted him of both offenses. Subsequently, the trial court orally assessed his punishment at twelve years' confinement for the sexual assault conviction and ten years' confinement for the indecency conviction. The court also assessed an $800 fine for the sexual assault conviction. The written judgments, however, do not accurately reflect the trial court's oral pronouncements or the clerk's record. The judgment for the sexual assault conviction lists the charge as “Indecency to a Child Younger than 17 Years” and erroneously states appellant entered into a plea bargain. Further, the judgment for the indecency conviction includes an unpronounced $800 fine as punishment and also erroneously states that appellant entered into a plea bargain. Appellant now appeals the convictions based on these alleged discrepancies.
 
II. INCORRECT OFFENSE IN CAUSE NO. F05-20053-LW
 
        In his first issue, appellant asks this Court to modify the judgment in cause no. F05-20053-LW to reflect that he was convicted of aggravated sexual assault of a child younger than fourteen years of age. The judgment currently lists the offense convicted of as indecency with a child. The State supports this modification.
A. Applicable Law
 
        This court has the power to modify the judgment of the court below to make the record speak the truth when we have the necessary information to do so. Tex. R. App. P. 43.2(b); Bigley v. State, 865 S.W.2d 26, 27-28 (Tex. Crim. App. 1993); Asberry v. State, 813 S.W.2d 526, 529-30 (Tex. App.-Dallas 1991, pet. ref'd). “The authority of an appellate court to reform an incorrect judgment is not dependent upon the request of any party, nor does it turn on the question of whether a party has or has not objected in the trial court.” Asberry, 813 S.W.2d at 529-30. If a clerical error in the trial court's judgment is brought to our attention, we have a “mandatory duty” to correct it. Id. at 529. In Asberry, we held that the failure of the trial court to record an affirmative finding in the written judgment as to the use of a deadly weapon was a clerical error and, accordingly, modified the judgment to include the affirmative finding. See id. at 531.
B. Application of the Law to the Facts
 
        Appellant was indicted for aggravated sexual assault of a child younger than fourteen years of age in cause no. F05-20053-LW and indecency with a child in cause no. F05-20054-LW. However, the written judgments for both cases reflect that he was convicted of indecency with a child. The record indicates the judgment in F05-20053-LW is incorrect. The indictment for cause no. F05-20053-LW, as signed by the foreman of the grand jury, lists the charge as “AGG SEX A-V CH/14.” Additionally, during the oral pronouncement of the sentencing, the trial judge distinguished between the “aggravated sexual assault case” and the “indecency case.” Like the omission of the affirmative finding in Asberry, the mislabeling of the offense in cause no. F05-20053-LW was simply a clerical error in the written judgment. See Asberry, 813 S.W.2d at 529-30. Because the record unambiguously indicates the conviction in cause no. F05-20053-LW was for aggravated sexual assault of a child younger than fourteen years of age and not indecency with a child, we modify the judgment to correct the error. Accordingly, appellant's first issue is decided in his favor.
III. DELETION OF FINE IN CAUSE NO. F05-20054-LW
 
        In his second issue, appellant claims the written judgment for cause no. F05-20054-LW is incorrect because it includes an $800 fine that was not orally pronounced by the trial judge. The State agrees with this contention and both parties request that the judgment be modified to delete the fine.
A. Applicable Law
 
        “A defendant's sentence must be pronounced orally in his presence. The judgment, including the sentence assessed, is just the written declaration and embodiment of that oral pronouncement. When there is a conflict between the oral pronouncement of the sentence and the sentence in the written judgment, the oral pronouncement controls.” Taylor v. State, 131 S.W.3d 497, 500 (Tex. Crim. App. 2004) (footnotes omitted). If this court discovers such a conflict and the oral pronouncement is unambiguous, we have the authority to modify the judgment to reflect the oral pronouncement. See Asberry, 813 S.W.2d at 529-30; Aguilar v. State, 202 S.W.3d 840, 843-44 (Tex. App.-Waco 2006, pet. ref'd) (holding that because an oral pronouncement was ambiguous, it did not necessarily control over the judgment). In Taylor, the Court of Criminal Appeals, held that the Court of Appeals was correct in deleting a fine from a judgment because the trial judge did not orally assess the fine as part of the sentence when guilt was adjudicated. Taylor, 131 S.W.3d at 502.
B. Application of the Law to the Facts
 
        In the instant case, the appellant requests the judgment in cause no. F05-20054-LW be modified to delete the fine imposed as part of the sentence. The record supports such a modification. During the oral pronouncement of the sentence, the judge assessed a fine for the sexual assault offense, but not the indecency offense: “In the indecency case, the Court will sentence you to ten years in the Texas Department of Criminal Justice. On the aggravated sexual assault case, the Court will sentence you to twelve years and fine you $800.” Nevertheless, the written judgment for the indecency offense includes a fine of $800. Because the oral pronouncement was unambiguous, it controls over the written judgment to resolve the discrepancy. See Taylor, 131 S.W.3d at 500. Therefore, we modify the judgment in cause no. F05-20054-LW to delete the fine. See Asberry, 813 S.W.2d at 529-30. Appellant's second issue is decided in his favor.
IV. REMOVAL OF PLEA BARGAIN
 
        In his third and fourth issues, appellant asks this Court to modify the judgments in both of his cases to reflect that he did not enter into a plea bargain. The State supports this modification.
A. Applicable Law
 
        The applicable law associated with these issues is the same as associated with appellant's first issue: This court has the power to modify the judgment of the court below to make the record speak the truth when we have the necessary information to do so. Tex. R. App. P. 43.2(b); Bigley, 865 S.W.2d at 27-28; Asberry, 813 S.W.2d at 529-30.
 
B. Application of the Law to the Facts
 
         The written judgments in both cases state appellant agreed to a sentence of 10 years incarceration and an $800 fine as part of a plea bargain. However, the record does not reflect any such agreements. Appellant signed a Plea Agreement for both charges, but absent from either agreement were terms of an agreed to sentence. Additionally, in the “Trial Court's Certification of Defendant's Right of Appeal” for each case, the trial judge certified that each case was “not a plea-bargain case.” Because the record unambiguously indicates appellant did not enter into a plea bargain for either case, we modify the judgments to correct these clerical errors. See Asberry, 813 S.W.2d at 529-30. Accordingly, appellant's third and fourth issues are decided in his favor.
V. CONCLUSION
 
        Having resolved appellant's issues in his favor, we modify the trial court's judgments and affirm them as modified.
 
 
 
                                                          
                                                          DOUGLAS S. LANG
                                                          JUSTICE
 
 
Do Not Publish
Tex. R. App. P. 47
070005f.p05