Lorena Monserrath Gandara v. The State of Texas Appeal from 15th Judicial District Court of Grayson County (memorandum opinion)
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AFFIRMED AS MODIFIED and Opinion Filed September 25, 2018 S In The Court of Appeals Fifth District of Texas at Dallas No. 05-18-00449-CR LORENA MONSERRATH GANDARA, Appellant V. THE STATE OF TEXAS, Appellee On Appeal from the 15th Judicial District Court Grayson County, Texas Trial Court Cause No. 068742 MEMORANDUM OPINION Before Chief Justice Wright and Justices Myers and Stoddart Opinion by Chief Justice Wright Lorena Monserrath Gandara appeals her convictions for driving while intoxicated with a child passenger and aggravated assault with a deadly weapon. On August 28, 2018, the trial court filed findings and recommendations in which it found that appellant does not intend to proceed with her appeal. By order entered September 5, 2018, the Court adopted the trial court’s finding that appellant did not intend to proceed with the appeal. The Court’s order also informed appellant that if a motion to dismiss was not filed within ten days, the Court would order the appeal submitted without a reporter’s record or briefs. No motion to dismiss has been filed. We submit the case without the reporter’s record and briefs. See TEX. R. APP. P. 37.3(c), 38.8(b)(4). Absent briefs, no issues are before us. We have reviewed the clerk’s record for fundamental error and have found none. We note that the judgment in this case reflects the statute for offense for the aggravated assault count, labeled as “CT3,” as “CT3-22.02(2)(B).” The correct penal code provision for the offense of aggravated assault with a deadly weapon is section 22.02(a)(2). See TEX. PENAL CODE ANN. § 22.02(a)(2) (West 2011). The Court has the power to modify incorrect judgments when the necessary data and information is available to do so. See TEX. R. APP. P. 43.2(b); Abron v. State, 997 S.W.2d 281, 282 (Tex. App.—Dallas 1998, pet. ref’d). We modify the judgment to reflect the statute for offense as “CT3-22.02(a)(2).” We affirm the trial court’s judgment as modified. /Carolyn Wright/ CAROLYN WRIGHT CHIEF JUSTICE Do Not Publish TEX. R. APP. P. 47.2(b) 180449F.U05 –2– S Court of Appeals Fifth District of Texas at Dallas JUDGMENT LORENA MONSERRATH GANDARA, Appellant No. 05-18-00449-CR On Appeal from the 15th Judicial District Court, Grayson County, Texas Trial Court Cause No. 068742. Opinion delivered by Chief Justice Wright. Justices Myers and Stoddart participating. V. THE STATE OF TEXAS, Appellee Based on the Court’s opinion of this date, the judgment of the trial court is MODIFIED as follows: We modify the judgment to replace "CT3-22.02(B)" with "CT3-22.02(a)(2)" in the section styled "Statute for Offense." As MODIFIED, the judgment is AFFIRMED. Judgment entered September 25, 2018. –3–
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