Opinion
No. 05-07-01366-CR
Opinion Filed September 8, 2008. DO NOT PUBLISH. Tex. R. App. P. 47.2.
On Appeal from the 363rd Judicial District Court, Dallas County, Texas, Trial Court Cause No. F01-58300-W.
Before Justices BRIDGES, FITZGERALD, and LANG. Opinion By Justice LANG.
MEMORANDUM OPINION
Appellant Demarcus Tarkeis Curry pleaded guilty to possession with intent to deliver cocaine in an amount of one gram or more, but less than four grams. The trial court assessed punishment at ten years' imprisonment, probated for five years, and a $2500 fine. Subsequently, the State filed a motion to revoke appellant's probation, alleging several violations of the conditions of such probation. The trial court granted the State's motion and ordered appellant punished in accordance with the original sentence. In his sole issue on appeal, appellant asserts the trial court's September 7, 2007 "Judgment Revoking Community Supervision" should be reformed. The State agrees. Based on the record, we decide appellant's issue in his favor. The trial court's judgment is affirmed as modified. We issue this memorandum opinion pursuant to Texas Rule of Appellate Procedure 47.4. See Tex. R. App. P. 47.4. The trial court's September 7, 2007 "Judgment Revoking Community Supervision" states appellant pleaded "true" to the allegations in the State's motion to revoke probation. However, the record shows appellant pleaded "not true" to those allegations. Further, while the trial court's judgment states appellant was convicted pursuant to section "481.115 Health and Safety Code," the record shows appellant was convicted for the offense of possession of cocaine with intent to deliver, which is a violation of section 481.112 of the Texas Health and Safety Code. See Tex. Health Safety Code Ann. §§ 481.115, 481.112 (Vernon 2003). Finally, the judgment states "Original Punishment Assessed: 10 Years State Jail Division, TDCJ Probated 5 Years Fine: $ 2500.00." However, the record shows the original punishment assessed included ten years' imprisonment in the Institutional Division of the Texas Department of Criminal Justice, rather than the "State Jail Division." An appellate court has the power to modify an incorrect judgment to make the record speak the truth when it has the necessary information before it to do so. See 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); see also Tex. R. App. P. 43.2(b). We conclude the judgment in this case is incorrect and should be modified. Appellant's issue is decided in his favor. Accordingly, we modify the trial court's September 7, 2007 "Judgment Revoking Community Supervision" as follows: (1) we modify the section titled "Plea to Motion to Revoke:" to state "Not True"; (2) we modify the section titled "Statute for Offense:" to state "481.112 Health and Safety Code"; and (3) we modify the portion of the section titled "Original Punishment Assessed:" to change "State Jail Division" to "Institutional Division of the Texas Department of Criminal Justice." As modified, the trial court's judgment is affirmed.