Opinion
No. 05-16-00755-CR
05-31-2017
JULIAN PESINA GUTIERREZ III, Appellant v. THE STATE OF TEXAS, Appellee
On Appeal from the Criminal District Court No. 6 Dallas County, Texas
Trial Court Cause No. F14-60200-X
MEMORANDUM OPINION
Before Justices Bridges, Lang-Miers, and Evans
Opinion by Justice Evans
Julian Pesina Gutierrez III appeals his conviction for robbery. In a single issue, appellant contends the judgment should be modified to show the trial court assessed punishment. We modify the trial court's judgment and affirm as modified.
Appellant was indicted for aggravated robbery with a deadly weapon, a knife. A jury convicted appellant of the lesser-included offense of robbery. During the punishment phase, appellant pleaded true to one enhancement paragraph. After finding the enhancement paragraph true, the trial court assessed punishment at twenty years' imprisonment. The trial court's judgment incorrectly reflects the punishment was assessed by the jury. Therefore, we sustain appellant's sole issue. We modify the judgment to show the punishment was assessed by the trial court. See TEX. R. APP. P. 43.2(b); Bigley v. State, 865 S.W.2d 26, 27-28 (Tex. Crim. App. 1993) (courts of appeals have authority to modify a judgment); see also Estrada v. State, 334 S.W.3d 57, 63-64 (Tex. App.—Dallas 2009, no pet.).
In a cross-point, the State contends the judgment should be also modified to show appellant pleaded true to one enhancement paragraph and the trial court found the enhancement paragraph true. The trial court's judgment incorrectly shows "N/A" for the plea and findings on the enhancement paragraph. We also note the judgment incorrectly shows the degree of the offense is "1st degree felony." Robbery is a second-degree felony offense. Accordingly, we modify the sections of the judgment entitled "plea to 1st enhancement paragraph" and "findings on 1st enhancement paragraph" to show "True," and modify the section entitled "degree of offense" to show "2nd degree felony." Bigley, 865 S.W.2d at 27-28; Estrada, 334 S.W.3d at 63-64.
As modified, we affirm the trial court's judgment.
/David W. Evans/
DAVID EVANS
JUSTICE Do Not Publish
TEX. R. APP. P. 47
160755F.U05
JUDGMENT
On Appeal from the Criminal District Court No. 6, Dallas County, Texas
Trial Court Cause No. F14-60200-X.
Opinion delivered by Justice Evans. Justices Bridges and Lang-Miers participating.
Based on the Court's opinion of this date, the judgment of the trial court is MODIFIED as follows:
The section entitled "Degree of Offense" is modified to show "2nd Degree Felony."
The section entitled "Plea to 1st Enhancement Paragraph" is modified to show "True."
The section entitled "Findings on 1st Enhancement Paragraph" is modified to show "True."
The section entitled "Punishment Assessed By" is modified to show "Court."
As modified, we AFFIRM the trial court's judgment. Judgment entered this 31st day of May, 2017.