Garza, Robert Rey v. The State of Texas

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AFFIRM as modified; Opinion issued August 22, 2012 S In The Court of Appeals Fifth District of Texas at Dallas No. 05-11-00146-CR No. 05-11-00147-CR ROBERT REY GARZA, Appellant V. THE STATE OF TEXAS, Appellee On Appeal from the Criminal District Court No. 6 Dallas County, Texas Trial Court Cause Nos. F08-34845-X, F08-34846-X MEMORANDUM OPINION Before Chief Justice Wright and Justices Bridges and Myers Opinion By Chief Justice Wright Robert Rey Garza was charged with two offenses of aggravated sexual assault of a child under 14 years of age. Initially, Garza pleaded not guilty to the charges. However, after the trial court granted appellant=s motion to quash the jury panel, Garza waived a jury trial, changed his plea to nolo contendere, and pleaded true to one enhancement paragraph in each case. After finding appellant guilty, the trial court assessed punishment at twenty five years= imprisonment in each case. The court also assessed a $5,000 fine in cause no. 05-11-00146-CR. In a single point of error, appellant requests that the trial court=s judgments be modified to correctly reflect appellant=s no contest pleas and to show there were no plea bargain agreements. The Comment [COMMENT1]: Page Number Footer A Included Use Hotkey ` and then EFA to (E)dit (F)ooter (A) Comment [COMMENT2]: Date Printed: Header A included, Use Hotkey ` and then EHA to (E)dit (H)eader (A) Use Hotkey ` and then DHAT to (D)elete (H)eader (A)(T)ext State agrees the judgments should be modified. We modify the trial court=s judgments and affirm as modified. The trial court=s judgments recite appellant=s pleas as not guilty in both cases. However, the record shows appellant pleaded no contest. Also, in cause no. 05-11-00146-CR, the section of the judgment entitled ATerms of Plea Bargain@ states there was an agreement to twenty five years= imprisonment and a $5,000 fine. The record shows there was no plea bargain agreement. Therefore, the judgments are incorrect and must be modified. We sustain appellant=s sole point of error. An appellate court has the authority to correct a trial court=s judgment to speak the truth when it has the necessary data and information to do so. See TEX. R. APP. P. 43.2(b); Bigley v. State, 865 S.W.2d 26, 27B28 (Tex. Crim. App. 1993); Asberry v. State, 813 S.W.2d 526, 529-30 (Tex. App.CDallas 1991, pet. ref=d). Accordingly, we modify the trial court=s judgments as follows: In cause no. 05-11-00147-CR, we modify the section of the trial court=s judgment entitled APlea to Offense@ to state ANolo Contendere.@ In cause no. 05-11-00146-CR, we modify the section of the trial court=s judgment entitled APlea to Offense@ to state ANolo Contendere, and modify the section entitled ATerms of Plea Bargain@ to state AOpen.@ As modified, we affirm the trial court=s judgments. CAROLYN WRIGHT CHIEF JUSTICE Do Not Publish TEX. R. APP. P. 47 110146F.U05 B2B S Court of Appeals Fifth District of Texas at Dallas JUDGMENT ROBERT REY GARZA, Appellant Appeal from the Criminal District Court No. 6 of Dallas County, Texas. (Tr.Ct.No. No. 05-11-00146-CR V. F08-34845-X). Opinion delivered by Chief Justice Wright, THE STATE OF TEXAS, Appellee Justices Bridges and Myers participating. Based on the Court=s opinion of this date, we MODIFY the trial court=s judgment as follows: We MODIFY the section entitled APlea to Offense@ to state ANolo Contendere.@ We MODIFY the section entitled ATerms of Plea Bargain@ to state AOpen.@ As modified, we AFFIRM the trial court=s judgment. Judgment entered August 22, 2012. /Carolyn Wright/ CAROLYN WRIGHT CHIEF JUSTICE Comment [COMMENT3]: Judgment - Sent out with Opinion to Internet S Court of Appeals Fifth District of Texas at Dallas JUDGMENT ROBERT REY GARZA, Appellant Appeal from the Criminal District Court No. 6 of Dallas County, Texas. (Tr.Ct.No. No. 05-11-00147-CR V. F08-34846-X). Opinion delivered by Chief Justice Wright, THE STATE OF TEXAS, Appellee Justices Bridges and Myers participating. Based on the Court=s opinion of this date, we MODIFY the trial court=s judgment as follows: We MODIFY the section entitled APlea to Offense@ to state ANolo Contendere.@ As modified, we AFFIRM the trial court=s judgment. Judgment entered August 22, 2012. /Carolyn Wright/ CAROLYN WRIGHT CHIEF JUSTICE Comment [COMMENT4]: Judgment - Sent out with Opinion to Internet

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