OSCAR B. CALK, Appellant v. THE STATE OF TEXAS, Appellee

AFFIRM as modified; Opinion issued February 1, 2010
 
 
 
In The
Court of Appeals
Fifth District of Texas at Dallas
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No. 05-09-00505-CR
No. 05-09-00506-CR
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OSCAR B. CALK, Appellant
 
V.
 
THE STATE OF TEXAS, Appellee
 
.............................................................
On Appeal from the 363rd Judicial District Court
Dallas County, Texas
Trial Court Cause Nos. F03-32356-W, F04-35921-PW
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MEMORANDUM OPINION
 
Before Justices Moseley, Richter, and Francis
Opinion By Justice Francis
 
 
        Oscar B. Calk appeals from the adjudication of his guilt for aggravated sexual assault of a child and failure to register as a sex offender. In four points of error, appellant contends the trial court's judgments should be modified. We affirm the trial court's judgments as modified. The background of the case and the evidence adduced at trial are well known to the parties, and therefore we limit recitation of the facts. We issue this memorandum opinion pursuant to Texas Rule of Appellate Procedure 47.4 because the law to be applied in the case is well settled.
        Appellant waived a jury, pleaded guilty to aggravated sexual assault of a child younger than fourteen years and pleaded true to one enhancement paragraph, and pleaded guilty to failure to register as a sex offender. See Tex. Penal Code Ann. §§ 22.021(a)(1)(B)(i) (Vernon Supp. 2009); Tex. Code Crim. Proc. Ann. art. 62.102(a) (Vernon 2006). Pursuant to plea agreements, the trial court deferred adjudicating guilt, placed appellant on community supervision for ten years, and assessed $800 fines in each case. The State later moved to adjudicate guilt, alleging appellant violated the terms of his community supervision. Appellant pleaded not true to the allegations in a hearing on the motions. The trial court found the allegations true, adjudicated appellant guilty in each case, and assessed punishment at life imprisonment for the aggravated sexual assault of a child conviction and ten years imprisonment for the failure to register conviction.
        In his first and second points of error, appellant contends the trial court's written judgment in each case should be modified to reflect his pleas of not true to the allegations in the motions to adjudicate. The State responds that the clerical errors complained of have been corrected in the trial court and the issue is moot.
        The record shows appellant pleaded not true to the allegations in the State's motions to adjudicate. The trial court's written judgments recite that appellant pleaded true to the motions to adjudicate. The trial court, however, corrected the apparent clerical error during a nunc pro tunc proceeding on June 22, 2009 in which it ordered the judgments be corrected to show the pleas to the motions to adjudicate were not true. Thus, this issue is moot. We overrule appellant's first and second points of error.
        In his third and fourth points of error, appellant contends the judgment in cause no. 05-09- 00506-CR should be modified to delete a fine that was not orally pronounced and to correct the statute for the offense. The State concedes the judgment should be modified to delete the fine and to include the citation to the correct statute under which appellant was sentenced.
        The record shows the trial court did not orally pronounce a fine when it imposed the ten year sentence. The trial court's judgment, however, recites an $800 fine. When a conflict exists between the oral pronouncement and the written judgment, the oral pronouncement controls. See Coffey v. State, 979 S.W.2d 326, 328 (Tex. Crim. App. 1998). We sustain appellant's third point of error. We modify the trial court's judgment to delete the $800 fine. See 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).
        Appellant was convicted of failure to register as a sex offender under article 62.102 of the Texas Code of Criminal Procedure. See Tex. Code Crim. Proc. Ann. art. 62.102(a). The trial court's judgment recites the statute for the offense is “section 62.10 Penal Code.” Thus, the trial court's judgment is incorrect. We sustain appellant's fourth point of error. We modify the trial court's judgment to show the statute for the offense is “62.102(a) Texas Code of Criminal Procedure.” See id.
        In cause no. 05-09-00505-CR, we affirm the trial court's judgment. In cause no. 05-09- 00506-CR, we affirm the trial court's judgment as modified.
 
 
                                                          
                                                          MOLLY FRANCIS
                                                          JUSTICE
 
Do Not Publish
Tex. R. App. P. 47
090505F.U05